13 Sep 2023
Insights from Kathryn Britten, Co-Founder of Equal Representation for Expert Witnesses (ERE).
Women were observed as appointed or testifying as sole expert witnesses in just 10% of cases requiring an expert during 2022, according to a recent survey from Equal Representation for Expert Witnesses (ERE), conducted in collaboration with global consulting firm AlixPartners. Furthermore, 64% of lawyers surveyed had not seen any female expert testifiers or co-testifiers in that period.
The data, released around the first anniversary of the launch of the ERE Pledge, also showed that lawyers’ preference to “use experts they know or have used previously” was believed to be the biggest reason for fewer female than male expert witnesses being appointed. At the same time, “a lack of women reaching sufficiently senior levels in their professions” and “a lack of experience in an expert witness role” also featured highly.
The survey drew on the experiences of more than 600 respondents from 32 countries worldwide, capturing the views of lawyers, expert witnesses, expert witness team members, litigation funders, and other corporate and legal professionals.
It also revealed a burgeoning pipeline of aspiring expert witnesses under 40 years old – male and female in equal proportions – with 80% of respondents who have yet to provide oral expert evidence aspiring to do so in the future.
Of the female respondents appointed as expert witnesses, 31% have been instructed more than 20 times, showing that, given the initial opportunity to break into an expert witness role, repeated appointments for these women followed.
However, despite this positive data, twice as many male expert witnesses had gone on to provide oral evidence or testify versus their female counterparts.
Ciarb spoke to Kathryn Britten, ERE Co-Founder and Partner & Managing Director at AlixPartners, about her career path to becoming an expert witness and what can be done to increase the number of female expert witnesses. Kathryn is a Chartered Accountant with over 40 years of experience as both an audit partner and a forensic accounting partner. She has extensive experience in high-profile and sensitive international cases and is one of the UK’s most senior forensic accountants and expert witnesses. She has written hundreds of reports and given oral evidence on many occasions. Kathryn has provided dispute resolution services in complex commercial situations for over 25 years.
How did you get into expert witness work?
I qualified as a chartered accountant and quickly specialised in audit work. My story won’t necessarily be relevant to all women as I chose to take a career break (just under six years) to have my children. I initially returned to work part-time and did some technical training and writing for the firm I was working for. My employer then merged with another firm, which meant I faced possible redundancy. A senior expert witness in the firm, seeking someone to work with him, gave me my first opportunity. I accepted the offer and learnt the ropes; the rest is history. We are going back to the 1990s when I started doing expert witness work alongside my central accounting and audit role. There were fewer female expert witnesses in those days, and I don’t think many formal forensic accounting teams existed. It was five years from starting in expert witness work before I first gave oral evidence in the High Court.
I have experienced firsthand the benefits of having a sponsor and I strongly believe that you need senior expert witness sponsorship to get your career going in this particular field. I encourage any aspiring expert witness, male or female, to make sure they have a sponsor. A sponsor is more than a mentor; a sponsor goes one step further and actively promotes your capabilities to the lawyers. They speak up for you and put you forward.
What are your recommendations for employers?
In terms of supporting women in the workplace, most firms are now much better at that. They have excellent schemes that help women keep in touch when they may be taking a career break and provide them with the flexibility they need when they return to work. At AlixPartners, we are good at giving women that support. It doesn’t mean that as a working parent, you won’t be juggling. It also doesn’t mean you can’t have it all. It just means you can’t have quite so much of it all, and that your timeframe will differ from your colleagues in achieving it all. And that shouldn’t matter; you’ve got your whole career in front of you.
However, in terms of nurturing female talent in the workplace, no one scheme or size fits all. If we are going to bring women through to senior levels so that they become “experts”, then we have to do it on a one-by-one basis. Each woman’s situation is different. There may be several things holding them back. Some might be a situation personal to the woman herself, some might be the professional environment the woman is in, and some might be a lack of opportunity. It is so important, therefore, to work with the individual. Understand what they want in their careers generally, how one can help them achieve that and what they need to do from their side to make it happen. In my view, individual nurturing is an essential way of ensuring we maintain a pipeline of aspiring and practising female expert witnesses and retain women in the workplace. Our survey shows that the fall-off in female experts in the later stages of their careers is something that we need to address across all sectors.
How can external counsel increase the number of appointed female expert witnesses?
We need external counsel to be braver and look further when selecting an expert witness. You can see from the survey results that lawyers are saying the main reason there are fewer female expert witnesses is because they, the lawyers, are using expert witnesses they’ve used before. They need to put together shortlists that include experts that they may not have worked with, experts that may not have had the same experience but would also be perfectly capable. Interestingly, even among my female lawyer contacts, I often hear them say that while they know a female expert witness who could do the job, they still put the man forward because they “know” that’s what their clients want.
What can senior expert witnesses do to improve the diversity of the expert witness community?
Find opportunities for up-and-coming experts.
As senior expert witnesses, we have a joint responsibility to ensure that we support and bring new experts through. The biggest challenge for aspiring expert witnesses is to get that first appointment and the first opportunity to testify. The number of repeat appointments afterwards suggests that the first appointment is key. Lawyers tend to appoint expert witnesses that they know and trust. Trust is an important word here. If the lawyers trust the expert witness, they should trust the expert witness to find and support a more junior expert. By extending that trust, lawyers will enable senior expert witnesses to bring in aspiring experts. As a senior expert, I sometimes use my relationships with lawyers to say I have someone who could do the work, and I am prepared to oversee and support them through the process. There is much less risk for a lawyer going to an expert witness who has never testified if they do it through an expert witness that they know and trust because then they know that someone will oversee them. By the senior expert witness securing a first appointment for an aspiring expert witness, they are building that associated “trust” in someone new, which could make quite a big difference.
Another recommendation is to report jointly. This particularly lends itself to arbitration as it is a more flexible structure than litigation. If there are two discrete parts to an issue that the expert is being asked to opine on, and if those can be split in some way, you can work with another expert, both sign the report, and both testify if necessary.
Any words of advice for parties and in-house counsel?
Insist on gender-diverse shortlists.
When I look at women in the workplace since I started my career, we’ve seen a massive increase in women reaching senior positions and doing everything they want, including expert witness work. I believe this is about critical mass. Once we have a critical mass of women who support other women, we will start to see female expert witness numbers growing more quickly. I’ve certainly had at least one case where an in-house lawyer said, “I want a female expert”, so their external counsel came to me. There are parties and in-house counsel who are now saying, “I want to work with women, I want to give women at least a chance”, so whatever their reasoning is, they are cognisant that they should be looking at a more diverse choice.
Unfortunately, with the ERE Pledge, we haven’t yet engaged with in-house counsel as much as we would like. If you look at the number of respondents to our survey, there are far more external lawyers than in-house counsel. Expert witnesses don’t have much direct contact with the end client. We are usually sought out and engaged by their external counsel. My message to in-house counsel would be that you have internal diversity initiatives, everyone has, and many of them have a sharp focus on gender. Those diversity initiatives are also being applied to supply lines to a certain extent. But expert witnesses are two stages down the supply line and can get overlooked. I would encourage them, therefore, to think beyond just asking for a diverse external legal team and extend that request for diversity to the expert witness shortlist. We can do everything we can from within the expert witness community to increase female numbers, but we need the demand side to be working for us as well as the supply side.
Any parting words?
When you return to work after a career break, you may find that you are two, three, four or even five years older than everyone else at your level. It is easy to get disheartened but, in my case, I chose not to. I just thought, OK, people can think I am five years younger than I am. I will press on. And so, in some ways, it extended out the other end of my career, and I’ve probably carried on longer than other people. I think it’s a case of not letting that be a fear. It can be disheartening to return to the same place and see all the people around you have been promoted and think I’ll never get there – but you can!
I found that working as an expert witness as a young mum was a great career for me. While there were timetables I had to stick to, the nature of the work has been quite flexible. I had to have support systems in place so I could jump when I needed to, but I became very good at juggling!
Amit Arora - Director, AlixPartners (Risk Advisory – Disputes and Valuations)
Amit is a valuation expert and forensic accountant with 15 years of professional experience. He specialises in cases involving valuation, accounting, and the quantification of damages in contractual, shareholder, joint venture, post-acquisition, and intellectual property disputes. Amit also performs valuations for strategic, corporate finance, restructuring, financial reporting, regulatory, and tax purposes. He has assisted in high-profile financial services and oil and gas matters, although his experience covers a wide variety of business issues, situations, sectors, and geographies.
“My first role as an expert was four years ago; Kathryn and I co-authored reports in a dispute concerning a transaction. My contribution was a specific section related to valuations – my area of expertise – working together with Kathryn and an industry expert. Since then, I have had numerous opportunities as an expert witness. In these projects, I have continued to work with Kathryn and some of AlixPartners’ other experienced experts, but in a structure in which they provide support as a sounding board for the opinions I form in the reports I submit. This has multiple benefits. It provides the client with the continued assurance of a strong and experienced team working on the case, whilst I can use this support network to challenge my own analysis.
“I testified twice (in two weeks!) last year and have two more cases where I am scheduled to give evidence this year. Of course, testifying was an important milestone in my career, and the first instance was nerve-wracking. But I felt prepared for the occasion, having been the primary support to many other experts and attending Hearings and Trials in which they gave evidence – that really is great preparation.
If I had any advice for aspiring expert witnesses, I would encourage them to be patient. I have seen fairly new experts take on cases that I would say were not appropriate for them at that stage of their career, and this can set you back. My experience has been to trust advice from those around you when considering whether opportunities are right for your expertise. With the right experience under your belt, you can be more confident going on to testify in an area that is central to your expertise.”
Ciarb is proud to be a signatory to the ERE pledge and a steering group member.
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