What is the proper role of lawyers who engage independent experts in legal proceedings? How much assistance, if any, can lawyers lend to an expert in completing their report? Is it appropriate to have regular and informal correspondence with an expert witness?
This article provides an overview of two Australian cases involving the failure of lawyers to observe the principles of practice with respect to retaining, instructing, and assisting in the preparation of independent expert evidence. In both cases, the credibility of the expert, and their instructing lawyers, was blown, and vital evidence was disregarded by the Courts.
This article focuses on important tips for practitioners to keep in mind.
The experts
Ordinarily, opinion evidence is inadmissible. Expert evidence is an exception to that rule. As early as the 1550s, Courts have relied on expert witnesses to help judges and juries determine questions of science or professional skill that lie beyond their experience or expertise1.
An expert witness gives evidence in Court (typically by way of a written report and/or testimony) on a matter or matters within a field of expertise. They are deemed to be an “expert” in a subject through acquisition of formal qualifications or by direct experience.
It might be tempting for lawyers to view an expert witness as someone who is “joining their team”. After all, they are being paid to give evidence for your client. However, experts are not “hired guns” or “paid agents”; they do not wish nor advocate for a particular outcome that will further your client’s case. If you retain an expert witness to produce an opinion, it is crucial that they maintain a reputation of objectivity.
Lawyers should take great care to ensure that they do not attempt to twist, contort, or otherwise interfere with an expert’s report to further a case or fit a case theory. This is not only wrong, but it is often self-defeating2. The cases below are examples of the kind of issues that can arise, and the potential consequences, when lawyers fail to follow good practice.
Case studies
Case Study 1 – New Aim Pty ltd v Leung [2022] FCA 722 (‘New Aim’)
This case involved a claim made by an e-commerce company, New Aim, against former employees for revealing confidential information to a competitor. New Aim’s lawyers engaged an expert witness to prepare a report on business practices within the e-commerce sector.
New Aim’s lawyers provided the expert with an instruction letter and the expert produced her 16-page report the following day. Eyebrows were raised by the expert’s apparent ability to produce a comprehensive expert report overnight, and it became the subject of detailed cross examination.
During cross examination, the expert admitted that, among other things:
- The report was a “collaboration” between the expert and the instructing lawyers.
- One iteration of the draft report had been produced by a lawyer from the instructing firm (at [48]).
- She had received emails from the instructing lawyers which effectively suggested she make changes to her draft report.
- Entire paragraphs of the report were not drafted by the expert. The Court did not accept the expert’s assertion that the paragraphs in question were reflective of her opinions even if they were “not exactly 100 per cent written by [the expert]” (at [49]).
In this case, the Court said that it had no confidence in the expert’s ability to give independent and reliable evidence and, as such, it rejected the expert witness’ evidence in its entirety. (at [78]).
Case Study 2 – Australian Competition and Consumer Commission (ACCC) v Snowdale Holdings Pty Ltd [2016] FCA 541
This was a Federal Court case that involved an allegation by the ACCC of misleading or deceptive conduct against one of Australia’s largest egg producers, Snowdale Holdings Pty Ltd (Snowdale). The consumer watchdog alleged, and Court found, that Snowdale farms in Western Australia were wrongfully labelling and advertising their eggs as “free range”. The ACCC claimed that, among other things, the eggs in question were produced by hens who were not permitted to go outside and the farming conditions inhibited them from moving freely in open space.
Snowdale engaged a suitably qualified expert to opine on the conditions at Snowdale. During the cross-examination of Snowdale’s expert, the ACCC called for drafts of the expert report.
The documents were produced and showed that:
- The expert sent versions of his first and second draft report to the instructing solicitors. The drafts were each roughly three and a half pages long.
- Snowdale’s solicitors then returned to the expert an amended version of almost nine pages.
- Subsequently, seven further iterations of the report were generated.
- The final report was based on the nine-page document prepared by the solicitors instead of the initial three-page report drafted by the expert.
The Court found examples of amendments to the different iterations of the report that indicated that the expert was open to altering the report to assist Snowdale’s case. One such example is in relation to the number of hens that were allowed to wander outside to open ranges. In the initial three-page report, the expert stated that he typically saw between 40-80% of the hens exiting barns at a Snowdale farm, whereas in the final report he said he saw between 70-90%3. Apparently (without having studied the details of the case), the issue of whether more than 50% of the chickens went outside was of critical importance in the proceedings. The Court perceived the expert as being an advocate for Snowdale and it had a devastating impact on his claim to be an independent expert.
The Court accepted the ACCC’s argument (at [387]) that an examination of the various iterations of the report showed that expert “…made, or acquiesced in the making of, amendments to his report which excised material which could be perceived as adverse to, or imply criticism of, Snowdale’s case, or included material which could be perceived to assist Snowdale’s case.”
The Judge placed no weight on the expert’s report and otherwise approached his evidence “with considerable caution”4.
With these two cases in mind, below is a list of tips for practitioners.
Tips
1. Legislative requirements
Make sure you are familiar with the legislative changes that came into effect in Queensland in 2022 that modify the law in relation to expert evidence and introduce a Code of Conduct. Re-read the Uniform Civil Procedure (Expert Evidence) Amendment Rule 2022 (Qld) (The Amendment Rule). The Amendment Rule affirms the duties of experts including: to assist the court; not advocate for a party; not accept instructions from any person to adopt or reject a particular opinion; and to comply with the Code of Conduct.
The Code of Conduct appears in Schedule 1C of The Amendment Rule. As soon as practicable after the expert is appointed, you are required to give him or her a copy of it5.
If you intend to rely on an expert report, it must be disclosed to the other party within 90 days after the close of pleadings if your client is the plaintiff and 120 days if the defendant6.
2. Instructions
Provide the expert with all the relevant material. Do not leave out material that is (or appears to be) harmful to your client’s case; doing so will give the impression that you have provided incomplete briefing documents to deliberately bias the expert’s opinion.
Avoid asking biased or “loaded” questions, or questions that presume the answer.
Draft detailed questions and assumptions that are tailored to draw out an opinion in a way that addresses the real issues in dispute7.
Ensure that the questions you ask concern subject matter within the expert’s specialised knowledge.
3. Communications
Make sure you carefully manage your communications and avoid careless communications that could potentially be used against you or the expert giving evidence. Some degree of consultation between you and the expert is appropriate and necessary, however, expert evidence presented in Court should be, and should be seen to be, the independent product of the expert8.
Do not say or do anything that can be perceived as putting pressure on the expert to change their mind to suit the requirements of the case theory or breach their obligations to the Court. In Phosphate Co-operative Co of Aust Pty Ltd, Brooking J advised that the guiding principle must be that care should be taken to avoid any communication which may undermine, or appear to undermine, the independence of the expert9.
My colleague Vincent Berry recently posted a note in which he urged lawyers to ask themselves, before sending any kind of correspondence, whether they would be comfortable with that email or text being read aloud in Court. If the answer to that question is “no”, you should reconsider your approach.
Note that in New Aim, the Court held that “all correspondence about the manner of preparation of an expert report should be disclosed, and, to the extent that oral advice is conveyed to the expert, the substance should be documented and disclosed10.” It is important that both your written and verbal communication to the expert is carefully considered.
4. Changes to drafts
It is the lawyer’s job to ensure that documents produced to the Court meet evidentiary requirements.
Normally, experts are not legally trained, and they might not have experience in drafting expert reports or giving evidence in Court. So, when reading a draft report, you will likely identify parts of it that need to be re-structured, clarified, supplemented, or otherwise revised in some way. You can and must point out, for instance:
(a) if the report fails to address the real issues, or the author appears to have misinterpreted questions and/or assumptions;
(b) any contradictions, gaps in the reasoning, or conclusions made without any apparent or proper basis;
(c) if the report fails to distinguish between the assumed facts and the opinion which is supposed to be based on the facts;
(d) the report does not explain how the opinion is substantially based on the expert’s specialised knowledge;
(e) the report contains irrelevant material;
(f) if the expert appears to have disregarded or overlooked relevant data or information; or
(g) if the report contains faults in opinions that go beyond matters of expression and presentation.
Lawyers should be involved in the writing of reports only in relation to the form of the report11 and with the purpose of ensuring that the report is presented in a clear and logical fashion and that it constitutes legally admissible evidence.
Avoid advising or suggesting to an expert to use a different form of expression or methodology that could have the effect of:
(a) misstating or misrepresenting facts or opinions; or
(b) altering the substance of the opinion.
5. Disclosure
In Queensland, draft expert reports are disclosable so that the effect of any input from lawyers will be obvious to the other parties to the litigation12. Ensure that any permissible drafting done by you (the lawyer), and sent to the expert for consideration, is disclosed in the expert report.
Conclusion
Expert evidence is sometimes required to support propositions that are at the heart of your client’s claim, and it can significantly influence the outcome of the case. Always ensure you follow best practice and stay up to date with legislative changes.
Suggested further reading: Landel Pty Ltd & Anor v Insurance Australia Ltd [2021] QSC 247
1 Buckley v Rice-Thomas (1554) 75 ER 182.
2 Whitehouse v Jordan [1981] 1 WLR 246 at 256.
3 ACCC v Snowdale Holdings Pty Ltd [2016] FCA 541 at [389-90].
4 Ibid at [413].
5 Section 429G(4) of the Uniform Civil Procedure (Expert Evidence) Amendment Rule 2022 provides that, unless the court orders otherwise, the report may be admitted in evidence in the proceeding only if the report confirms the expert has read, and agrees to be bound by, the Code of Conduct.
6 Section 429I, Uniform Civil Procedure (Expert Evidence) Amendment Rule 2022.
7 Landel Pty Ltd & Anor v Insurance Australia Limited [2021] QSC 247, Dalton J at [34].
8 Whitehouse v Jordan [1981] 1 WLR 246 at 256.
9 [1989] VR 665 at 683.
10 New Aim Pty Ltd v Leung [2022] FCA 722, McElwaine J at [76].
11 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893, Linden J at [19].
12 Rule 212(2) of the UCPR; see also Landel Pty Ltd & Anor v Insurance Australia Limited [2021] QSC 247, Dalton J at [19] and Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373, [10]-[15].
Tagged in: Expert Witness, litigation, Reports, Witness