October 3, 2023
Disputes between parties can often include complex questions that require a certain level of expertise or experience to accurately understand and answer. Where these complex questions arise, it is common for parties to look to engage experts capable of answering such, and have them lead evidence as to their impartial opinion on the matter.
In doing so, experts will be required to prepare expert report(s). The requirements around such must be closely understood by both the expert witness and the lawyer, as compliance is critical to ensuring the effective provision of expert evidence in a case. This article seeks to breakdown the basic requirements and matters which lawyers and experts should understand in advance of any engagement.
Who are Expert Witnesses
Expert witnesses are individuals who have expertise in a certain area, through experience and education. They are engaged to provide an objective and impartial assessment of specific matters in dispute between the parties.
An expert can only give evidence on matters that they have expert knowledge on, and where the facts they rely upon are both identifiable and proven to be correct. These matters should be comprehensively set out in any expert report. Relevantly, because expert witnesses function as an exception to the rule that witnesses cannot give evidence of opinion, their expertise and facts relied upon must be clearly established.
Hence, when engaging any expert, it is important to consider their specific area of expertise, and ensure they have the requisite knowledge to answer the questions to be posed to them. Without this, they are unlikely to be given considerable weight when a Court assesses any evidence they give.
Lawyers should be mindful to ensure that an expert does not stray into providing evidence which they are not qualified to provided, or outside of their area of expertise. Where an expert strays from their area of expertise, it is unlikely that such evidence will be accepted, and there may be further repercussions as to how the expert’s evidence is considered generally.
Independence
Given an expert witness is engaged to provide objective and impartial assessments, it is important to remember that they are not advocates for a party.
An expert witness’s duty is to give evidence to the Court in an unbiased and impartial. It is therefore critical for lawyers to ensure such independence is maintained, and that all engagements are transparent to avoid any perceived bias or conflict.
Briefing an Expert
When lawyers brief an expert, in anticipation of an expert report being prepared, it is important that they make the expert aware of relevant statutory obligations and requirements surrounding their engagement.
In Queensland, this is covered under the Uniform Civil Procedure Rules 1999 (Qld), Chapter 11, Part 5, Division 4. It is important that when first engaging an expert, a copy of this division is provided for their review. The letter of instruction issued to the expert should also provide the expert read and familiarise themselves with the obligations. Furthermore, when the expert report is prepared, it is important the report include an explicit acknowledgement that they have understood the division and agree to have been bound by it.
Lawyers should be conscious that certain communications with experts are unlikely to be covered by privilege, and specifically any document consisting of a statement or report of an expert will not be privileged from disclosure.
Importantly, this means that where an expert provides a preliminary opinion in writing, especially before having a comprehensive understanding of the matter, this opinion will likely be disclosable. In such circumstances, where an expert subsequently changes their opinion (including because they have a more comprehensive understanding of the matter), this may expose the expert to a line of questioning during cross-examination as to the reason why their views changed.
Parties should therefore be conscious of what material is produced in advance of an expert report being settled, keeping in mind the potential for any such materials to be disclosable.
Next Week: Preparing Expert Reports
In the final part of the Taking Statement’s article series, next week’s article will cover the things to keep in mind when an expert report is being prepared, including reviewing draft reports and the potential for a joint report to be prepared by parties’ respective experts.
Lamont Project and Construction Lawyers
Lamont Project and Construction Lawyers have extensive experience preparing and conferencing with expert witnesses, and can assist parties in any stage of a dispute.
By working proactively, Lamont Project and Construction Lawyers can ensure witness conferencing occurs in advance of key litigious milestones, and that internal timeframes are established with lead to the greatest chances for success.
The content of this article is for information purposes only and it does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.
Contact: Peter Lamont or Ryan Bryett
Email: [email protected] or [email protected]
Phone: (07) 3248 8500
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Postal Address: PO Box 1133, Milton Qld 4064