Expert evidence: Instructing and communicating with your expert

Article

Expert evidence: Instructing and communicating with your expert

Forensic Foresight: February 2017

Expert evidence can be a crucial component for resolving disputes, particularly in Court proceedings. Until recently, the Courts had provided limited guidance on the process of instructing and communicating with an expert. On 25 October 2016, the Federal Court of Australia introduced General Practice Note: Expert Evidence Practice Notes.  GPN-EXP addresses, amongst other things, the interaction and communication between instructing solicitors, parties and the expert. 

GPN-EXP codifies better practice currently used by experienced practitioners to ensure an expert’s independence is preserved and that the ultimate purpose of expert evidence is maintained.

This article provides an overview of the key changes and explores the guidance provided in relation to instructing and communicating with experts.

Introduction

The Federal Court of Australia (FCA) introduced General Practice Note: Expert Evidence Practice Notes (GPN-EXP) on 25 October 2016. This was part of a wide-ranging National Court Framework update where all 60 pre-existing practice notes were replaced.

At 13 pages, GPN-EXP is substantially more detailed than its two-page predecessor.  The new GPN-EXP expands on the old practice note by including many matters generally considered to be ‘better practice’ amongst experienced practitioners.

The predecessor CM-7 provided guidance on an expert’s general duty, form of a report and limited guidance on experts’ conferences. GPN-EXP encompasses the guidance in CM-7 and builds on it. Key areas addressed by the GPN-EXP include:

  1. Approach to expert evidence
  2. Interaction with expert witnesses
  3. Role and duties of the expert witness
  4. Contents of an expert’s report and related material
  5. Case management considerations
  6. Conferences of experts and joint reports
  7. Concurrent expert evidence.

This article will explore the new guidelines as they relate to the interactions between a party and their legal representatives with experts.

What does GPN-EXP say on interaction with expert witnesses?

Clause 3 of GPN-EXP contains four guiding principles on interactions with experts:

  1. Consistent with an expert’s overriding duty to the Court, parties and their lawyers should not view an expert witness as a “hired gun”. An expert witness should not be pressured or influenced into conforming their views to a party’s interests
  2. Parties and their lawyers should be cautious not to have inappropriate communications when retaining or instructing an independent expert. The GPN-EXP does not provide further detail on what the Court considers to be inappropriate communications
  3. The expert should be provided with all relevant information (whether helpful or harmful to the instructing party’s case) to enable them to prepare a truly independent report, as well as a copy of the GPN-EXP
  4. Any questions or assumptions provided to an expert should be provided in an unbiased manner and in such a way that the expert is not confined to addressing selective, irrelevant or immaterial issues.
What do these principles mean in practice?

It is useful to see the expanded codification of existing practices surrounding interactions between experts and their instructing solicitors. GPN-EXP gives pause to both experts and instructing solicitors to consider whether their correspondence and other communication maintains the expert’s independence.

A party or legal representative should be cautious not to have inappropriate communications when retaining or instructing an independent expert.

The guidelines make specific reference to the appropriateness of expert/solicitor correspondence and the requirement not to influence or pressure a witness into conforming their views.  Although GPN-EXP provides no guidance on what the Courts consider to be inappropriate communication, there are many cases which set a precedence around communication and particularly in relation to the level of influence an instructing solicitor or party has on the content of the expert evidence. One cautionary tale is the recent case of ACCC v Snowdale Holdings [2016] FCA 541 (Snowdale). 

In Snowdale, the defendant engaged an expert to prepare a written report which considered the conditions at a chicken farm from which eggs were sold as “free range”.  The expert’s final opinion and report was significantly influenced by the instructing solicitor. Through ten draft versions, the report grew from three-and-a-half pages to almost nine pages by the time it was filed. The plaintiff argued that the amendments assisted the defendant’s case and undermined the expert’s claim to independence. The Court agreed and concluded that no weight should be given to the report.

As a result of the inappropriate communications between the expert and the instructing solicitor, Siopis J stated in his judgement that the expert “did not act as an independent expert… [he] did not approach his role as an expert witness from the position of a person who owed a paramount duty to the Court to express an independent opinion.” It is therefore positive to see the GPN-EXP further codify the protection of the integrity of the expert’s position by requiring parties and their lawyers to avoid influencing their opinions.

“[he] did not approach his role as an expert witness from the position of a person who owed a paramount duty to the Court to express an independent opinion.”

The third and fourth principles require the information, questions and assumptions to be provided to the expert in an unbiased way, which allows the expert to fully utilise their specialised knowledge to undertake all enquiries and calculations they deem necessary in properly discharging their duty to the Court.  This is consistent with the GPN-EXP’s stated purpose of expert evidence, being “for the Court to receive the benefits of the objective and impartial assessment of an issue from a witness with specialised knowledge.”

Viewed as a whole, we consider that these guiding principles will enhance discussion in the industry regarding what are inappropriate communications and also increase awareness of the many factors that should be considered by solicitors and experts in ensuring an expert’s independence is maintained.

The future

GPN-EXP is subject to a 12-month review period to allow for external consultation. It will be interesting to see if the FCA takes advantage of this period to further articulate examples of inappropriate communications and whether other Courts will follow the FCA’s lead in providing expanded guidance to expert witnesses in their jurisdictions.

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