Expert witness

[Chris Lloyd]

A few months ago I posted a query to anzstat about difficulties that I have found in providing expert witness advice to legal teams. Accoding to this Code of Conduct, the primary duty of an expert witness it to the court not to the legal team who are paying you. You are a witness - but you are paid. This inevitably sets up some tension. *

The Expert Witnesses Institute of Australia*has plenty*of general information including*their own*Code of Practice. I*think it is helpful to cite*this code,*with a link, whenever*taking on a consulting job of this nature. It lets the lawyers*know, right from the start, that you are not a soft touch.

I received replies from several respondents and have condensed their replies below,*without specific attribution.



The first issue is a tendency for lawyers to shun written advice, probably because of a fear that your report will be discoverable by the court i.e. made available to both parties in the dispute. Personally, I find it very difficult to give quality advice on statistical issues verbally but I, and others, have found that this is often what you will be asked for. Some of my colleagues have addressed this situation by drafting written material and then discussing it face to face. Only when the document is satisfactory to both parties would it be formally handed over in written form.

I have even found it difficult, on occasion, to get a written account from the lawyers on exactly what issues they want me to address! This actually violates point 5 of*the above code of practice which says

A Member will only accept an instruction that is clear, precise and unambiguous. Orally accepted instructions should be confirmed in writing by the expert.

How true is it that everything you write down will be discoverable?*

In some states, for instance South Australia, all communication between the lawyers and experts are considered discoverable. The idea is that if lawyers shop around for a favourable opinion then the unfavourable opinions will also become available to the court. Indeed, the other opinions would put the favourable opinion in a more relevant context, bearing in mind that the court may not be able to resolve technical disputes between experts. It is also important for the court to detect any meddling by the lawyers in altering the opinion of their own expert in substantive form.*

I have been picked up by some respondents with a legal background(!) that claiming that my written advice is the property of the Court was not correct. They belong to the legal team paying for my services. Actually, that is true, but as soon as the final version is served at a hearing, privilege in the main document and drafts is ordinarily waived. So the other side*does see the early documents if my expert opinion is used in court. At this point the other party might call on even earlier reports, as well as the briefing documents and original letter of request. And, if there are other comments tending in a different direction then I would anticipate cross examination on this - since they will no doubt have their own expert too.

So as far as I can see, in practice any preliminary advice I give will be discoverable provided the legal team actually use*my advice. And while they are paying me, they not surprisingly act under this assumption!

There is also a distinction between expert assistance and expert advice, see paragraph 676 of this link. As far as I can make out, this seems to be a distinction between preliminary advice given to the legal team (assistance) before the formal advice is submitted to the court and then becomes expert evidence. So the same basic point is being made (only in legalese).

The second and related issue I raised in my original query to anzstat was the quality of the analyses and advice that might arise in the preliminary stages of a case. This might get raised in court to discredit the expert witness (me). Provided that nothing in the early advice is absolutely incompetent, this can be handled in fairly obvious, if formal, ways.

1. Record assumptions, the information available and the alternatives considered. Be very specific and accurate in the words you use, not just your calculations! Avoid the temptation to “write well”. Lawyers would prefer us to be precise, pedantic and repetitive.
2. Qualify the draft report appropriately, such as noting that it is a preliminary view, perhaps subject to obtaining further information, or otherwise reserving his right to amend the opinion.

Formally you can write “Working Draft - Unfinished and Incomplete” in the header of all documents until you are ready to finalise and share it. One respondent uses the following longer version:

In the light of uncertainty about the quality of data and general information available the data and information collection process will continue until the end of ………, so the information and interpretations made from it and reported here is of a preliminary nature and will or may likely vary from what is published in the final report.

In any case, there would be no harm to your credibility as a witness if you change yours view on finding out further information or once your thinking has been refined.

As stated by the federal Court here

If an expert’s opinion is not fully researched because the expert considers that insufficient data are available, or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one.* Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.

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