Do In-house Counsel Hold The Key To Unlocking Greater Female Representation As Expert Witnesses?

• Published date: 18 September 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: AlixPartners
• Author: Ms Kathryn Britten

Having acted as an expert witness in major commercial disputes for almost 30 years, I have been consistently shocked by how few women have been appointed as my opposing experts, despite an obviously burgeoning pipeline.

This has been a dominant reason behind co-founding the Equal Representation for Expert Witnesses (ERE) Pledge, seeking to drive, on an equal opportunity basis, an increase in the number of women appointed as expert witnesses in dispute resolution procedures worldwide.

The response has been extremely heartening since our website launched in May 2022 - more than 1,300 signatures and rising, including more than 130 organisations.

In addition, given the lack of consolidated data regarding the numbers of experts (male and female) appointed - this is not maintained by courts or Arbitral institutions - this year we took the decision to not only collect our own data, but also generate ideas to drive ERE strategy.

Our inaugural survey received more than 600 responses, with almost equal levels of participation from men and women, lawyers and expert witnesses. However, we were disappointed not to capture a sizeable number of views from in-house lawyers, particularly those who influence the make-up of their team of legal and expert representatives in any litigation and arbitration.

In our experience In-house counsel will tend to rely on their external counsel to find the right expert witness for their dispute; but external counsel told us themselves that the primary reason for fewer female than male expert witnesses being appointed was their preference to use experts they know or have used previously.

Therein lies a problem for in-house lawyers. Unless the expert witness talent pool is extensively explored, how do you know that you have the very best expert witness for your dispute (male or female)?

The ERE survey also revealed a strong pipeline of aspiring experts already experienced in drafting reports - 80% of respondents who have yet to provide oral expert evidence told us they aspire to do so in the future.

It is incumbent upon all of us who can convert this healthy pipeline, whether we are...