Summary

In this patent case, the judge noted that neither expert was a native English speaker and both had difficulties with questions put to them during cross-examination. The misstep of one expert over the word “buckling”, which he had used in his report, and his use of a translator during cross-examination for reference, led the judge to approach his written evidence with a degree of caution.

Learning points

Learning points for experts:

• If you have been asked to give expert evidence in a language in which you are not fully proficient, have an honest conversation with your instructing party about your ability to do so.

• Remember that cross-examination can be a lengthy, stressful and tiring process, and you may be required to use the language for longer periods than you are accustomed to.

• Make sure you fully understand the meaning of all of the terms and language that you and your opposing expert have used your reports.

• In writing your report, it can be tempting, when you don’t know the exact right word, to translate the term from your native language into the target language. However, this could backfire if you fail to recall the meaning of that word during cross-examination.

• For this reason, you should also be especially vigilant about making wording changes suggested by your instructing party.

• If you are not fully confident in your abilities, consider using a translator both for your report and in court.

Learning points for instructing parties:

• If your expert is not a native speaker of the language used in the proceedings, it is worth assessing their spoken and written abilities in that language. 

• Remember that language skills can be impacted by factors associated with legal proceedings such as stress, tiredness, and unfamiliar surroundings. 

• Be careful when suggesting changes to the language used in reports in order to express a concept more naturally in the target language.

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