One of the key exercises in successful litigation is engaging an expert to provide evidence. Any mistake in following the procedural requirements and criteria to engage an independent expert may generate serious and costly consequences.
What follows is an overview of the Expert Evidence role in assisting you in litigation.
The Role of Expert Evidence and Duty to the Court
The role of an expert is to assist the court to determine the issues in dispute. To do this, the court must be able to assess the evidence adduced, including the independent expert’s opinion. It is the expert’s responsibility to provide the court with criteria to enable the expert opinion to be assessed.
As a result, care should be taken to ensure any expert instructed understands that the report should provide the court with such information (including the field of specialised knowledge of the expert, the expert’s qualifications, the facts and/or assumptions) that form the foundation of the expert’s opinion and how the specialised knowledge of the expert applies to those facts and/or assumptions to produce the expert’s opinion.
Same as lawyers the independent expert’s ultimate duty is to the court not to the engaging party. There is a perception that some of the experts are “hired guns” selected by the advocates on the basis of what would help the engaging party to win not what would assist the Court to reach a finding correctly.
Accordingly great care should be exercised when instructing an independent expert to ensure that the expert’s independence is not compromised.
In litigation matters, there is always an inherent risk that the expert joins the litigation team and becomes an advocate of the engaging party rather than an independent expert.
Independent experts need to ensure that the language of their correspondence and report reflects objectivity at all times.
In NSW both the Supreme Court and the Federal Court have set out guidelines for the experts requiring that experts be provided with a statement of the ethical duties of an independent expert.
Experts’ conduct should be at all times in line with the Code of Conduct and their overriding and paramount duty to the court.
Key Elements in Engaging and Briefing an Expert
The proper skill and knowledge of the advocate are required to find the right expert, prepare instructions, assess the expert’s report and utilise the report in court.
Selecting the right expert witness is sometimes a crucial exercise and Courts often look into the expert’s experience as well as knowledge. The qualifications of the expert are also a matter of importance. The advocate must review the expert’s curriculum vitae, references, professional memberships and current professional certificates.
Another crucial step in briefing an expert is to provide the expert with proper and relevant facts and/or assumptions.
In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 the Court of Appeal criticized the expert’s failure to explain the assumptions and facts underlying the conclusion in the report and how he reached that conclusion.
Accordingly the Court of Appeal rejected the expert’s evidence and overturned the Judgment of the court below which was in favour of the Plaintiff for over $1 million.
It was held that the primary duty of the expert in giving evidence is “to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions”.
It was also noted that “If evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”.
Further the expert should be able to explain to the court how he or she had reached the conclusion based on the underlying facts and assumptions.
In FGC Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VFCA 33, the expert was also the adviser to the parties at the time the dispute arose. Hence in the expert report, the expert witness relied on an assumption that was not supported by the facts in the expert’s instructions but which the expert claimed as valid assumption due to his position as the adviser to the parties.
The Full Court of the Supreme Court of Victoria rejected the expert’s evidence on the grounds that the expert’s special knowledge was not sufficient for the expert to consider that assumption as fact and subsequently rely his expert opinion on that assumption.
In briefing an expert, the lawyer is required to give the expert witness a copy of the code of conduct.
Expert Reports
Issues to be considered during preparation and after finalisation of the expert report are:
- The expert should include and/or attach to the report:
- a copy of the code of conduct to the report,
- the expert’s qualification,
- facts and assumptions on which the expert’s opinions are based,
- expert’s reasons,
- outlining issues that may have fallen outside the area of expertise of the expert,
- outline a list of material, tests and investigations utilized in support of the expert’s opinion,
- if the report is complex, setting out a brief summary of the report,
- The expert report should be served on all parties to the proceedings,
- If for any reason the expert changes its opinion or fail to consider all the aspects of the matter requested in his or her instructions, the expert is to issue a supplementary report,
- Should the expert changes his or her opinion, the court should be notified, and
- The expert should retain draft of the expert report that was forwarded to the engaging party.
In New South Wales, there is an explicit provision that an expert must include information on any charging fees that are contingent on the outcome of the proceedings or any deferred payment schemes.
Procedural Rules for Giving Evidence in Court
Whilst a litigation team is focused on preparation of expert reports as evidence in chief, oral testimony of the expert may prove to be extremely important.
Some of the procedural rules in this respect are as follows:
- Experts should consider factual evidence adduced in court,
- Experts must be available for cross-examination if applicable,
- In case of multiple experts in a matter, cross-examination can be separate or concurrent,
- Experts are permitted to question other experts,
- Experts should be able to direct the judge in technical issues under consideration,
- Experts may need to highlight the key issues or otherwise provide the court with a concise summary of the facts that led to their opinion, and
- Experts should at all times provide their evidence to the court consistent with the Code of Conduct and their paramount duty to the court.
Courts usually exercise their discretion in matters such as the experts’ location in the hearing room, the order in which factual and expert evidence is given, the order of cross–examination of the experts, the ability for experts to question the opinion of other experts.
It is a cost-effective and efficient exercise to where possible appoint a single expert, either by the court or the parties, rather than separate experts by each party.
In New South Wales specifically if a court appoints an expert in respect of an issue in the matter it is prohibited to adducing other expert evidence on an the same issue without leave of the court.
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Litigation Lawyers Sydney at Pavuk Legal can also assist you with a full range of legal services in respect to litigation with a view to utilise Expert Evidence.
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