Every so often, an expert reaches a point in a case where the frustration becomes acute enough that a specific thought crosses their mind: if I could just explain this directly to the tribunal, without it being filtered through submissions and cross-examination and procedural timing, they would understand the technical point immediately. The disagreement in question might be genuine and significant, a real gap between what the expert believes the evidence shows and what the process, as it is unfolding, seems likely to communicate. The impulse to bypass the machinery and go straight to the decision-maker is understandable. It is also, in almost every circumstance that arises in ordinary practice, exactly the wrong instinct to act on.
This is worth addressing directly rather than leaving as an unspoken temptation, because the reasoning behind why direct contact is so heavily disfavored is not simply a matter of rule-following. It reflects something structurally important about how adversarial and inquisitorial systems alike are built to test evidence, and understanding that structure makes the restriction easier to accept in the moment it is actually tested, which is usually not a calm, reflective moment.
Why This Question Even Arises
The temptation toward direct contact tends to surface under a fairly specific set of conditions: a technical point the expert considers genuinely dispositive, a process that seems, from the expert's vantage point, to be moving toward a hearing or decision without that point having been clearly surfaced, and a growing sense that the ordinary channels, written submissions, cross-examination, joint statements, are not adequately conveying something the expert believes is centrally important. None of these conditions are unusual. Complex technical disputes frequently produce exactly this feeling in a competent, engaged expert at some point during a lengthy proceeding.
What makes the temptation particularly potent is that it often arrives wrapped in entirely good intentions. The expert is not typically motivated by advocacy for one side's outcome in these moments; they are motivated by a conviction that the tribunal is at risk of getting the technical answer wrong, and a sincere belief that a direct conversation would prevent that outcome. This is precisely why the instinct deserves serious engagement rather than dismissal, because it usually comes from a place of genuine professional concern rather than any intent to game the process.
There is also a psychological dimension worth naming. Experts spend their careers accustomed to being the person in the room whose technical judgment is trusted and acted upon directly, in ordinary professional practice outside the litigation context. A dispute resolution process that filters an expert's insight through layers of procedure, cross-examination, and legal argument can feel, to someone used to more direct professional influence, like an unnecessarily indirect and inefficient way to convey something the expert is confident about. That feeling is understandable given how experts typically operate in their non-litigation work, even though the indirection exists for reasons that have nothing to do with doubting the expert's competence.
The Case for Direct Contact
The efficiency argument for direct expert-to-tribunal contact is not entirely without merit, and it is worth stating fairly before explaining why it ultimately does not hold up. A direct conversation could, in principle, resolve a genuine misunderstanding faster than waiting for the point to be developed through submissions, cross-examination, and eventual written argument, a process that can take months in a complex matter. If the expert is right that the tribunal is heading toward a mistaken understanding of a technical point, and if that mistake genuinely matters to the outcome, the cost of that delay is not trivial, both in terms of the resources spent developing points through slower channels and in terms of the risk that a wrong understanding hardens before it is corrected.
There is also a version of this argument grounded in access to expertise rather than efficiency. Some technical questions are sufficiently complex that a direct, interactive exchange, questions asked and answered in real time, genuinely produces better understanding than a written report or even structured cross-examination, where the format itself can obscure rather than clarify a nuanced technical point. Tribunal-appointed experts and tribunal-directed questioning, discussed elsewhere in this content series, exist partly because this dynamic is real and worth accommodating through proper channels.
A further, more subtle version of the efficiency argument involves timing rather than format. In a fast-moving case, a technical misunderstanding identified early and left uncorrected can shape how counsel on both sides frame subsequent submissions, potentially compounding the confusion at each stage rather than clarifying it. An expert who could flag a misunderstanding the moment it is spotted, rather than waiting for the next scheduled opportunity through the ordinary process, is responding to a genuine timing problem, even if direct contact is ultimately the wrong tool for solving it.
The Case Against Direct Contact
The case against direct, unstructured contact is considerably stronger, and it rests on a principle that runs through essentially every adversarial and most inquisitorial systems of dispute resolution: any communication that reaches the decision-maker must be capable of being tested and responded to by the other side. A conversation that occurs outside this structure, however well-intentioned, denies the opposing party the ability to challenge, question, or contextualize what was said, and it denies the decision-maker the benefit of hearing the opposing perspective before forming a view.
This is not a narrow technical objection; it is close to the foundational premise of how these systems establish legitimacy. A tribunal's eventual decision carries authority partly because the process that produced it gave both sides a fair, equal opportunity to be heard and to test the other side's evidence. A single instance of unstructured, one-sided contact, even a brief one, even one motivated purely by a desire to correct a misunderstanding, introduces exactly the kind of asymmetry that undermines that legitimacy, regardless of how accurate the substance of what was communicated turns out to be.
There is also a credibility cost to the expert personally that tends to be underestimated in the moment. An expert who steps outside the established channels, even with good intentions, risks being perceived, fairly or not, as having crossed from independent technical witness into advocate, someone willing to bypass the process to secure a particular outcome. That perception, once formed, is difficult to undo, and it can affect how the tribunal weighs everything else the expert has said, not just the specific point raised through improper contact.
There is a further, easily overlooked cost that falls on the instructing party rather than the expert alone. A finding of improper contact, even where the expert's underlying intentions were genuinely good and the substance of what was communicated was accurate, can taint the credibility of that party's entire case in the eyes of the tribunal, independent of the technical merits. Opposing counsel confronted with evidence of improper contact will, understandably, use it to cast doubt on the broader fairness and good faith of the other side's approach to the proceedings, a cost considerably larger than the specific point the improper contact was meant to correct.
Where the Rules Actually Stand
Institutional rules and procedural norms across most arbitral and judicial settings are, in broad terms, unambiguous on this point: any communication with the decision-maker outside the formally established channels, absent both parties' knowledge and participation, is treated as a serious procedural irregularity. The specific consequences vary by institution and jurisdiction, and can range from the communication being disregarded entirely to more serious consequences for the party or expert involved, but the underlying principle, no one-sided contact with the decision-maker, holds with remarkable consistency across systems that otherwise differ considerably in their procedural traditions.
This consistency is itself informative. Adversarial common law systems and more inquisitorial civil law systems approach expert evidence quite differently in many respects, discussed in more detail elsewhere in this content series, but they converge almost entirely on this specific point. That convergence suggests the principle reflects something close to a universal requirement for procedural legitimacy, rather than a narrower, jurisdiction-specific rule that might reasonably be relaxed under sufficiently compelling circumstances.
It is also worth noting that this convergence extends beyond formal legal systems into the norms of professional bodies that regulate expert conduct across many technical disciplines. Codes of conduct for experts in engineering, accounting, medicine, and other fields that regularly produce litigation or arbitration witnesses generally include their own, independent prohibitions on this kind of ex parte contact, which means an expert considering it may be exposing themselves to professional disciplinary risk that exists entirely separate from, and in addition to, whatever procedural consequence the tribunal itself might impose.
The Narrow Circumstances Where Direct Interaction Is Genuinely Appropriate
None of this means an expert's voice reaching the tribunal directly is always improper. It means the interaction has to occur through a structure that preserves both sides' ability to participate. Formal hearing testimony, where the expert is examined and cross-examined with both parties present, is direct interaction with the decision-maker, properly structured. Written questions from the tribunal to the experts, discussed elsewhere in this content series as a valuable tool for narrowing issues, with both parties given the opportunity to see the questions and the answers, is another entirely proper form of direct engagement. A tribunal-directed hot-tubbing session, where opposing experts are questioned together and can respond to each other in real time before the tribunal, is a further legitimate structure that achieves much of the efficiency benefit of direct dialogue without sacrificing fairness.
What unites these proper channels is that they are all visible to both parties, occur within the formal record, and preserve the opportunity for response. The distinction that matters is not whether an expert communicates directly with a tribunal, but whether that communication happens within a structure both sides can see and engage with, or outside one.
Recognizing this distinction changes how the underlying frustration should be understood. The problem was never that the expert wanted to communicate directly and forcefully with the tribunal about a point of genuine importance. The problem, when it arises, is a mismatch between that entirely legitimate desire and the specific mechanism chosen to satisfy it. Redirecting that desire toward one of the many proper mechanisms available resolves the underlying frustration without any of the fairness cost.
What to Do Instead When the Urge Arises
When the temptation toward direct, unstructured contact arises, the more productive response is to channel that sense of urgency into the formal process more forcefully rather than around it. This might mean raising the concern clearly and directly with instructing counsel, framed specifically as a risk that a central technical point is not being adequately developed through the current procedural path, and asking whether a supplemental submission, a request for additional questioning, or a procedural application to address the gap is appropriate. Counsel, made aware of a genuine concern in these terms, generally has several proper mechanisms available to ensure a critical point reaches the tribunal through appropriate channels.
It can also help to raise the concern during a properly structured joint expert conference, where the urgency behind the concern can be tested directly against the opposing expert's view, in a setting built for exactly this kind of substantive exchange. An expert convinced they are right about a dispositive technical point should welcome the opportunity to test that conviction against a competent opposing view, since a position that survives that test arrives at the tribunal considerably stronger than one asserted through an improper, untested channel.
There is a further practical option worth considering in cases where the concern is less about a specific unresolved technical point and more about a general sense that the current procedural pace is not leaving adequate room for the issue to be developed properly: a formal request, made through counsel, for a case management conference to address scheduling and the adequacy of remaining time for expert issues. This addresses the structural source of the frustration, insufficient time or process for a genuinely important point, directly and appropriately, rather than treating the symptom through an improper shortcut.
Where genuine urgency exists, because a decision seems imminent and a critical point has not yet been developed, escalating that urgency to instructing counsel directly and immediately, in plain terms, is almost always more effective and considerably safer than any attempt to reach the tribunal independently. Competent counsel, informed clearly that a technical point believed to be central has not yet reached the tribunal through the ordinary process, generally have procedural tools available to correct that gap quickly.
What This Means for Experts, Counsel, and Tribunals
For experts, the implication is to treat the temptation toward direct contact as a signal worth acting on, just not in the form the temptation initially suggests. A strong, urgent sense that a critical point is not being adequately conveyed is valuable information, and the correct response is to escalate that concern loudly and clearly through proper channels, not to bypass them.
For counsel, the implication is to take an expert's expressed frustration about the process seriously and promptly, since an expert who feels unheard through ordinary channels is exactly the expert at greatest risk of considering improper contact, however briefly. A quick, genuine response to that frustration, explaining the available proper channels or actually using one, defuses the risk considerably.
For tribunals, the implication is to build in structured opportunities, questions to the experts, hot-tubbing sessions, joint conferences with clear reporting back to the tribunal, that give experts a genuine, sanctioned outlet for the kind of direct engagement the improper channel would otherwise tempt them toward.
Frequently Asked Questions
Is there ever a genuine emergency exception that justifies direct, unstructured contact with a tribunal? Essentially never in ordinary practice. Even in urgent situations, the proper response is an expedited application through counsel, not direct contact, since the same fairness concerns apply regardless of how time-pressured the situation feels.
What should an expert do if they believe counsel is not adequately conveying a critical technical point to the tribunal? Raise the concern directly and plainly with counsel first, in writing if the concern persists, since a clear paper trail of having raised the issue through proper channels protects the expert regardless of how the situation eventually develops.
Does communicating with a tribunal-appointed expert intermediary, if one exists, count as improper contact? Properly structured intermediary roles, where communications are visible to both parties, are generally acceptable; the concern is specifically about one-sided contact hidden from the opposing party, not about every form of structured interaction with the tribunal.
Can improper contact, even brief and well-intentioned, actually affect the outcome of a case? Yes, potentially significantly. Beyond any formal procedural consequence, the credibility cost to the expert can affect how the tribunal weighs their entire testimony, not just the specific point raised improperly.
Conclusion
The temptation to bypass the formal process and speak directly to a decision-maker over a fundamental disagreement is a familiar one to experienced experts, and it usually arises from genuine professional conviction rather than any intent to manipulate the outcome. That conviction deserves to be taken seriously, but the correct response is to channel it more forcefully through proper channels rather than around them. Every legitimate system for testing expert evidence, whatever its procedural tradition, depends on the principle that communication with the decision-maker must be visible and testable by both sides, and an expert's credibility, along with the fairness of the entire process, depends on respecting that principle even in the moments it feels most inconvenient to do so.
Key Takeaways
● The temptation toward direct, unstructured contact with a tribunal usually stems from genuine professional conviction, not an intent to manipulate the outcome, but it remains improper in essentially all ordinary circumstances.
● Adversarial and inquisitorial systems alike converge on the same principle: any communication reaching the decision-maker must be visible to, and testable by, both parties.
● Proper channels for direct engagement, tribunal questions to experts, hot-tubbing, formal testimony, achieve much of the efficiency benefit experts seek without sacrificing fairness.
● The correct response to a strong sense of urgency is to escalate the concern clearly and immediately to instructing counsel, not to attempt any form of direct, unsanctioned contact with the tribunal.
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