In our first blog of 2016, we will examine expert evidence horror stories and the lessons we can learn from these, including: the requirement to provide information to an expert, refraining from providing ‘input’ to an expert, avoiding personal costs orders and keeping away from one-sided expertise.
Lawyers must ensure that experts are provided with any and all relevant information which bears directly on the case at hand. Failure to do so can seriously damage the client’s case and can have professional misconduct consequences. The gruesome case of Bush v The Queen illustrates this.
In 1987 a man was convicted of the manslaughter of his first wife by way of strangulation. He was sentenced to 18 months’ imprisonment. In 1992, that same man was then convicted of attempted murder having stabbed his second wife repeatedly.
In defence of the accused, a specialist psychiatrist was called to give evidence about the mans ‘disassociated state’ to determine that his actions in stabbing his wife occurred independent of any conscious will. The lawyer failed to tell the expert, prior to trial, that the man had been convicted of killing his first wife.
Drummond J was critical of the lawyers’ failure to provide information to the expert that would have been of “clear, possible relevance to the expert’s opinion”. Had the defence told the expert that he was convicted of killing his first wife, the expert’s opinion could have changed substantially.
Clarify the Expert’s Assumptions
It can be important to clarify an assumption or opinion given by an expert prior to service of the report. However, it is important to remember that there is a fine line between clarification and suggestion. Too much input into an expert report by a solicitor can lead to a loss of privilege over documents or, worse, ruin an expert’s credibility at trial.
In Temwell Pty Ltd v DKGR Holdings a specialist accountant was engaged to provide expert opinion on the value of certain software. Under cross examination, it became apparent that the expert’s opinion had fluctuated in line with input from the solicitors.
As a result, Ryan J held that the “legal advisers may have been over-zealous in seeking to recruit the expert witness to the applicant team” and refused privilege over many notes between the solicitor and expert.
Avoid Personal Costs Orders
One of the scariest results for a legal practitioner or expert is the award of a personal costs order against them. Making a costs order against a non-party to the litigation is an extraordinary step but it can and does occur. Parties must remember that experts are bound by an Expert Witness Code of Conduct and overarching obligations not to mislead or deceive.
In Hudspeth v Scholastic Cleaning and Consultancy Services a consulting engineer was held to have breached the Expert Code of Conduct by failing to refer to later but substantially different expert reports. Astonishingly, the Victorian Supreme Court made the expert pay, personally, one-ninth of the defendants costs. Given that costs in commercial matters can run into hundreds of thousands of dollars this is a terrible result. It is also unsure whether an expert’s professional indemnity insurance policy would extend to cover a personal costs order.
One Sided Experts
The Court’s opinion of an expert’s independence can be substantially weakened where the expert lacks experience or appears to only favour one side of proceedings. This is problematic in class action litigation where an expert’s credibility has been damaged because the expert exclusively worked for plaintiffs and refused to accept briefs from defendants.
In the United States in Nancy George et al vs China Automotive Systems a securities expert was scrutinised about his expertise in the context of a major securities class action. Under cross examination, the expert conceded that, despite having received many briefs over the years, he had never found for the defendant once.
Litigation can go wrong at any turn and it is important, when working with experts, to adopt a transparent team based approach to avoid any of these scenarios. Best practice to ensure this occurs includes;
- Providing all relevant information that may change an expert’s opinion;
- Refraining from putting too much input into the report; and
- Acting as transparently as possible with the Court.
 (1993) 43 FCR 549
  FCA 806
 See Naomie Marble & Granite Pty Ltd v FAI General Insurance Co  Qd R 518
 E.g. See s16, 17,21,26 and 29 Civil Procedure Act 2010 (Vic). Various iterations exist for other states and territories.
  VSC 159
 USDC SDNY 7 3 2013
Image by Douglas Palmer via Flickr