What is an expert witness?

By Natasha Bian

An expert witness is someone who is qualified as an expert in a certain technical field based on their “training, study or experience”.[1] This specialised knowledge allows them an exception for their professional opinion and assumptions to be accepted as evidence in a lawsuit or criminal case.[2]

An expert witness has a unique and powerful role in court proceedings because the very nature of expert witness testimony is to provide independent forensic findings on particular issues in line with legal questioning. The court relies on their unbiased and specialised knowledge and as such, expert witness statements hold much influence on legal outcomes. The credibility of expert witnesses is of crucial importance, particularly where there are competing experts.

Expertise and qualification

Expert opinions are assumed to embody scientific integrity and are treated as evidence. The court must be confident that the expert has the requisite knowledge and expertise to guide legal inquiries in proceedings appropriately. How their expertise is demonstrated depends on the relevant field, but professional qualifications are always necessary. These qualifications inform their unbiased findings, which add weight to the credibility of their opinion.

Integrity through consistent independent inquiry

Experts cannot appear as biased advocates as their opinions and assumptions are valued for their forensic integrity. Answering with honesty and consistency is essential or they risk struggling in cross-examination and losing credibility – which is incredibly difficult to regain.[3] For issues which experts do not have a conclusive finding, they should answer simply as such, rather than to overstate, bluster or fabricate. Experts are not assumed to know or be able to predict everything regardless of experience.  To put it another way, experts that make appropriate concessions are credible experts[4]. This does not require an expert to make concessions which are fatal to a case; it requires an expert to admit things which are reasonably within the realm of possibility. There are two advantages to this; first, it shows that the expert has cogitated over the relevant issues and second, it demonstrates that the expert’s ability to remain objective outweighs their desire to win a point. Both these points are relevant considerations for a Judge weighing up credibility.

Confidence in communication

Much of communication and persuasion is effected through body language and not speech alone,[5] so how credible and helpful expert opinions are depend a great deal on how confidently they present their opinions. Confidence in communication is thus paramount as it demonstrates not only mastery of professional knowledge but can also guide the court in a solid direction without confusion.[6] An assured but not arrogant demeanor commands authority and credibility, and can more effectively persuade where there are conflicting expert opinions.

Being well-prepared

In order for the expert witness to perform the above points and convey credibility, they must be thoroughly prepared, not only in their specialty, but also with court procedures as to what is the standard of admissible evidence in the standing jurisdiction. Transparent communication and open discussion on findings with the appropriate lawyers enhances cohesion during cross-examination and dilutes confusion in the courtroom.[7]

Whether it is civil or criminal law that presides over the case, a well-prepared expert witness has a much higher chance of demanding credibility as they can effectively communicate findings on their specialised subject matter with confidence and conviction, whilst maintaining forensic objectivity.

[1] Evidence Act 1995 (Cth), s79

[2] Evidence Act 1995 (Cth), s79, s60

[3] Berry, C., “Expert witnesses – can their credibility be restored?” Business Law Review (UK), 10/2005, Volume 26, Issue 10

[4] See the comments of Chadwick LJ in Stanton v Callaghan [2000] QB 75 at 100-102

[5] Mehrabian, A. (1972). Nonverbal Communication. New Brunswick: Aldine Transaction

[6] “Expert Witness Confidence and Juror Personality: Their Impact on Credibility and Persuasion in the Courtroom”, The journal of the American Academy of Psychiatry and the Law, 2009, Volume 37, Issue 1

[7] Elaine M. Pagliaro ,“The Most Common Questions Asked about Expert Witness Testimony”, Forensic Magazine, 28 August 2013, accessed 30 August 2015, <http://www.forensicmag.com/articles/2013/08/most-common-questions-asked-about-expert-witness-testimony>

This article was prepared by Anuja Ng.

Legal professional privilege balances the need to encourage full and frank disclosure by clients to their lawyers with the interest of obtaining the fullest access to the facts relevant to a case.[i] Perhaps because it is itself a balancing exercise, it can be difficult to ascertain when privilege is lost.

What is legal privilege?

Legal professional privilege is a right to keep communications and documents between parties confidential and not disclose that material.  Relevantly to expert witnesses, it applies to confidential communications (oral or written) between the client, his or her lawyer and the expert, made for the “dominant purpose” (i.e., the prevailing purpose) of obtaining or receiving advice for existing or anticipated legal proceedings.[ii]

How is it waived?

Privilege can be waived or lost due to conduct inconsistent with its maintenance (e.g., if a party who is sued for negligence claims that they have privileged material that explains why their conduct was not negligent). In determining whether conduct is “inconsistent” [iii], considerations of fairness, relating to the maintenance of confidentiality, will be relevant.[iv] For example, it may be unfair to maintain privilege if the privilege-holder uses it to create an inaccurate perception of the privileged material.[v]

Privilege will also be waived with respect to any expert evidence that a client proposes to rely on and must be filed and served before the trial (e.g., an expert report). Privilege will be waived in any information that a client “knowingly and voluntarily” discloses the substance of, unless the disclosure occurs when making a confidential communication or preparing a confidential document or under legal compulsion.[vi]  Material is confidential when there is an express or implied obligation (under law or otherwise) not to disclose its contents.[vii]

When lawyers obtain expert evidence for their clients, attention must be turned towards the following:

Does privilege attach to a letter of instruction/brief from a lawyer to the expert?

Yes, in ordinary circumstances.[viii]

However, privilege may be waived if, in the expert’s report, it is stated that the letter is one of the sources of information upon which the expert has compiled his or her report.[ix] The Federal Court has waived privilege in these circumstances because the letter may have confined the expert to preparing the report in a certain way.[x] This is not the only circumstance in which privilege over instructions may be waived.[xi]

Does privilege attach to documents (e.g., witness statements) provided to the expert and communications between experts and legal advisers?

Yes.[xii]  Documents given to an expert that form part of the confidential communications between a lawyer and an expert attracts privilege.

However, that privilege may be waived if the expert’s opinion is stated to be based on those documents or those documents are stated to be possible sources of information upon which the expert relied.[xiii] Privilege will not ordinarily be lost if the expert does not refer to the documents. Further, mere reference to a document in an expert’s opinion does not waive privilege in the document – there must at least be a reference to the contents of the document and to reliance upon the document.[xiv]

Does privilege attach to working notes/field notes made by an expert in the course of forming an opinion?

It is unlikely that working products of an expert, made in the course of compiling his opinion would attract privilege. However, as noted above, privilege may be claimed in relation to communications between the expert and a lawyer (both ways) when the communication is made for the purpose of confidential use in litigation.[xv]

Does privilege attach to draft expert reports?

In general, privilege is unlikely to attach to draft expert reports.[xvi] However, as noted above, privilege may be claimed in relation to communications about the draft report, between the expert and the solicitor when it is made for the purpose of confidential use in the litigation.[xvii]

Further, a distinction may exist between draft reports created to note the evidence that the expert relies upon in producing his or her final report and draft reports created to communicate the expert’s opinion to the lawyer and be considered and commented upon by the lawyer. The former is unlikely to attract privilege but the latter may do so.[xviii]

Can an expert that a lawyer initially engages but then proves unsuitable, including because the expert’s view is unfavourable, be compelled by the opponent to give evidence?

There is no property in a witness’s evidence of fact, so a court can compel an expert witness to attend to give evidence on behalf of a party other than the party that first commissioned him or her. A witness may be compelled to give evidence and produce all documents made in the course of reaching the opinion. Instructions from the lawyer to the expert which attract privilege will not be required to be disclosed (but the expert will be required to state the assumptions upon which the opinion is based). Also, the opposing party cannot have access to the expert’s unused, but nevertheless privileged, report even if it chooses to call that expert in its case.[xix]

Practical implications

A number of practical implications arise out of the above.

• Experts should be briefed with written instructions, to be appended to the report, setting out the matters upon which the expert is required to base his or her opinion. If material is provided to the expert, lawyers should be certain that either no claim for privilege exists with respect to those materials or that any claims may be waived without undue prejudice to the client’s case.
• All documents provided to the expert should be provided on the lawyer’s instructions. The expert’s contact with the client should be limited.
• Consult with the expert before any draft report or written material is prepared to avoid misunderstandings and to minimise the creation of unnecessary drafts and written material that could be required to be produced. Written communications between the lawyer and the expert should not suggest changes to the content (as opposed to the form) of the report.
• Lawyers should arrange with the expert to have a discussion over the phone before the expert sends any draft report to the lawyer.
• Enter into an appropriate contract of engagement with the expert prior to any significant communications with him or her to maximise the protection of confidentiality and of preventing the use of information provided on behalf of your client to the expert.
• Avoid stating anything to the expert that you would not be prepared to state in open court. If the expert’s opinion is based on such statements you may be called to give evidence in that regard. [xx]

[i] Waterford v Cth (1987) 163 CLR 54 at 64-65.

[ii] Esso Australia; Evidence Act (Cth) ss17-

[iii] Uniform Evidence Acts, s 122(2).

[iv] Mann v Carnell (1999) 74 ALJR 378.

[v] A-G (NT) v Maurice (1986) 161 CLR 475.

[vi] Uniform Evidence Acts, s 122.

[vii] Uniform Evidence Acts, s 117.

[viii] Tirango Nominees v Dairy Vale Foods Ltd [No 2] (1998) 83 FCR 397; Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21]

[ix] Instant Colour Pty Ltd v Canon Australia Pty Ltd, Unreported, Federal Court of Australia, 30 October 1995 (R D Nicholson J)

[x] Instant Colour Pty Ltd v Canon Australia Pty Ltd, Unreported, Federal Court of Australia, 30 October 1995 (R D Nicholson J)

[xi] Tirango Nominees at 401 (Mansfield J)

[xii] sections 118 and 119 of the Evidence Act 1995 (NSW) and Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21]

[xiii] Jessup v Gorjup, Unreported, Supreme Court, Tas, 20 November 1997

[xiv] Bourns Inc v Raychem Corp [1999] 3 All ER 154; Dingwall v Commonwealth (1992) 39 FCR 521.

[xv] Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd [1991] 1 Qd R 141 (Thomas J).

[xvi] Bourns Inc v Raychem Corp [1999] 3 All ER 154; Dingwall v Commonwealth (1992) 39 FCR 521

[xvii] See also, Pomerenke, “Expert Witness and Legal Professional Privilege” (1998) 19 Qld Lawyer 18.

[xviii] New Cap Reinsurance Corporation Ltd (in Liq) v Renaissance Reinsurance [2007] NSWSC 258 at [30]

[xix] Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd [1991] 1 Qd R

[xx] Expert Evidence: Legal Professional Privilge and Experts’ Reports (2001) 75 ALJ 258.

This article was prepared by Anuja Ng.

What are Joint Expert Reports (JERs)?

A JER is the written product of a conference (directed by the Court) between expert witnesses in the same or similar fields on matters in issue in the proceedings. A JER should address questions specified by the Court and submitted by any party. A JER sets out the matters upon which the experts agree, matters of disagreement and concise reasons for any disagreement.[i]

Different courts have their own rules relating to the content and form of a JER. For example, a Supreme Court of NSW Practice Note states, among other things, that JERs should contain suggestions, where helpful, of other matters that could be submitted to the experts for their opinion. In a recent policy issued by the Land and Environment Court of NSW, the court requires that JERs avoid jargon, prefer sentences to dot points and not be a “mere copy and paste” of an individual expert report.[ii]

JERs are cost effective, relatively quick, narrow the contested issues, can reduce the need for experts to attend and give evidence in court and provide a strong indication of what expert evidence will be adduced in trial.[iii] As such, directions ordering JERs are becoming increasingly common when courts are confronted with the likelihood of conflicting expert views.  The following five tips may be of assistance to lawyers in proceedings in which a JER is directed.

1. Confer with your expert(s) as early as possible

The court may direct a joint conference at any time,[iv] including quite early in a proceeding. If the court directs a conference before an expert has provided his or her report to the instructing lawyer, the Court may direct the experts on the issues to be dealt with in the JER and on the facts and assumptions on which the JER should be based.

Lawyers should ensure that sufficient discussions with experts have taken place on matters that are important to clarify as early as possible and prior to any conference. Note that the JER could be used in cross-examination if the expert, at trial, expresses a different opinion from one that he or she committed to in a JER.[v]

Experts should be furnished with relevant materials and materials required by the court with sufficient time to enable them to prepare for the conference and seek clarification from their instructing lawyer or the court on questions that may be put to them. In the Supreme Court of NSW, these materials should be provided at least 14 days prior to the conference.[vi]

2. Discuss with the expert what role he or she may play at the conference

An expert’s conduct during the conference and in the course of preparing a JER must be in compliance with the Expert Witness Code of Conduct.[vii] This means that the expert must exercise independent and professional judgment and not act as an advocate for any party.

However, an expert may volunteer for certain roles relating to the conference process, such as the role of chairperson. [viii] It may be worthwhile discussing with your expert, prior to the conference, if this is a role that he or she wishes to volunteer for.

3. Be aware of what you can discuss with an expert before he or she signs a JER

Lawyers should be aware of the rules of a court on the nature of the communications he or she may have with an expert prior to the signing of the report, particularly when the expert does not sign the JER immediately at the end of the conference.

For example, the Supreme Court and Land and Environment Court of NSW have both issued Practice Notes/Policies stating that lawyers must not give advice or guidance to an expert prior to the signing of the JER except as provided in those documents.

After the JER has been signed, lawyers and experts can discuss what transpired at the conference and the expert may provide the lawyer with a copy of the report. However, details of what occurred during the conference should not be referred to in a hearing unless all affected parties agree.

4. Be aware of any rules of court relating to your conduct during a joint conference

Although in some cases the Court will direct that lawyers and clients not attend the joint conference, the Court may also make directions requiring lawyers and clients to attend or give the option to attend.[ix]

If in attendance, a lawyer will be able to respond to questions from experts about the legal process relating to the case, assist experts in identifying required and relevant documents, provide other requested material and correct any misunderstandings relating to the facts in the case or the conference process.

However, the rules of a court may regulate the nature or manner of the lawyer’s contribution during the conference. For example, in the Supreme Court of NSW, lawyers for all parties in attendance should respond together, rather than individually, when responding to the experts.

Obtain the court’s leave if adducing further expert evidence

A party needs the court’s leave to adduce additional expert evidence on issues already dealt with in a JER.[x] Leave may not be granted e.g., on the basis that additional evidence is not relevant; because a party has waited too long to obtain it; or a party has not given sufficient notice of his or her intention to rely on it.[xi]

Lawyers should consider as early as possible if need for additional expert evidence may arise and if so, obtain the court’s leave as soon as possible and prior to commissioning the additional report.

In Lucantonio v Kleinert [2009] NSWSC 929, while refusing to admit expert evidence obtained after a joint conference, Brereton J said:

“The court manages closely the use of expert evidence…the purpose of the course of management adopted would be entirely frustrated if the plaintiff were now permitted to call a further expert witness who had not been involved in the conclave and the preparation of the joint report.”

In that case, the expert in question was appropriately qualified and his evidence was relevant. However, notice of intention to rely on his evidence was given after the joint conference had taken place.

Primary expert reports prepared prior to the joint conference, where relevant (e.g., because they provide the court with an opportunity to evaluate why the experts may have come to diverse conclusions on some matters), are ordinarily admissible.[xii]

[i] Uniform Civil Procedure Rules 2005 (UCPR) r 31.24(1)(c) and r 31.26.

[ii] Land and Environment Court of NSW – JER Policy (commencing 12 June 2015).

[iii] Land and Environment Court of NSW – JER Policy.

[iv] UCPR r 31.24(1).

[v] Practice Note No. SC Gen 11.

[vi] UCPR r 31.24(1)(c) and r 31.26.

[vii] In Sch 7 of the UCPR.

[viii] Practice Note No. SC Gen 11.

[ix] UCPR r 31.24(2).

[x] UCPR r 31.26(5).

[xi] E.g., Platinum Investment Management Limited v Chief Commissioner of State Revenue [2009] NSWSC 988.

[xii] See Commissioner of Taxation v AusNet Transmission Group Pty Limited [2015] FCAFC 50 (at [84]-[85] per Kenny J).