Expert evidence guidelines
An expert is a person who is sufficiently qualified and knowledgeable to provide an independent, non-partisan, unbiased, and objective opinion to the court in relation to matters of which the witness is proficient. An expert may be engaged by a lawyer/party to:
- Advise as to whether a matter should be litigated.
- Assist a legal team to understand technical specialist information.
- Provide a report and give evidence during a court hearing.
University staff members (usually academic staff) who have expertise in a particular field are sometimes requested by a party to legal proceedings to provide an expert report or to give expert evidence in that field on behalf of that party in connection with the proceedings.
Procedural matters for staff members
1. Staff members may refuse a request to provide an expert report or give expert evidence if requested do so by a party to legal proceedings. The party may obtain from the Court a subpoena requiring the evidence to be provided, but usually they would look for another expert in such circumstances.
2. A staff member should not agree to act as an expert unless he or she is sufficiently qualified and experienced to be regarded as an expert.
3. Staff members should not agree to provide an expert report or provide evidence in a matter which may cause embarrassment to the University (e.g. providing evidence for a party who has instituted legal proceedings against a major business partner of the University).
4. The University would usually regard the provision of an expert report or evidence by staff members as work undertaken in the course of the staff members’ duties as an employee of the University. Accordingly, the remuneration payable in respect of the report or evidence is payable to the University. In this instance, the staff member must obtain the written approval of his/her Head of School on the recommendation of the supervisor/discipline head before agreeing to provide an expert report or provide evidence.
5. Where a staff member considers that there are grounds for providing a report or expert evidence personally in accordance with the University’s Outside Activities Policy (No. 311) he or she must first obtain approval from the Pro-Vice Chancellor of the staff member’s Portfolio as required by the Outside Activities Policy. Where approval is obtained, the staff member must in all circumstances ensure that he/she complies with the University’s Conflict of Interest Policy (No. 518). The staff member should also note that in this situation he/she will not be covered by the University’s insurances or standard indemnity applicable to staff members, and the staff member must obtain their own legal advice.
6. Where the report or evidence is part of the staff member’s duties, the staff member should contact Legal Services Group (extension 53180) through the Portfolio Business Development team prior to signing any letter of engagement. The arrangement between the expert and the lawyer should be confirmed in writing. It is essential that the nature of the legal proceedings/matter, instructions, purpose and extent of report and the fee is detailed in writing.
The content and form of expert reports
An expert report should:
- Detail the expert’s qualifications and the material used in the production of the report.
- Clearly and fully state the expert’s assumptions.
- Give reasons for each opinion.
- Include a statement that the expert has made all relevant enquiries and not omitted matters of significance.
- State the opinion is “provisional” if insufficient data was available
- Attach or summarise the instructions.
- State the facts, matters and assumptions on which report proceeds.
- State what materials and documents were considered.
- Include the following statement on the front cover:
“This document may be protected by legal professional privilege and is confidential. To preserve this status, the document must be kept secure. Its contents (or reference to it) must not be disclosed to any other persons, with the exception of persons notified to the expert.”
Matters relevant to court appearances
Rules governing the admission of expert evidence in court
- The witness must have sufficient and specialised knowledge and experience to entitle him/her to hold themselves out as an expert to assist the court.
- The information provided by the expert must be of value to the court, not merely information or opinion which can be adduced from common knowledge.
- The knowledge and expertise must be recognised as credible by other experts in the field.
- The witness must not proffer his/her opinion about the central legal issues or merits of the case.
- The witness can only proffer an opinion which is based on their interpretation or view of the facts. The facts, upon which the opinion is based, must be identified and available to the court for scrutiny.
Expert witnesses in civil and criminal proceedings enjoy immunity from civil action in relation to evidence given during proceedings. However, liability may still arise from the contents of the expert report.
Expert reports (but not preparatory notes) are subject to legal professional privilege if the report is required by a lawyer on behalf of a client. Only the client (not the expert) should waive privilege by disclosing contents of report.
The court may require the expert witness may need to sign an undertaking prepared by the lawyer indicating that he/she has stated has qualifications and experience and disclosed affiliations.
Expert evidence by certification
Commonwealth courts may require an expert witness to submit his/her report by tendering a certificate, signed by him/her containing certain information.
Court appointed experts
A court (as opposed to a party) may appoint an expert witness to assist the court.
Rules and codes of ethics for experts
Most courts prescribe codes of conduct for expert witnesses, which list the duties imposed on expert witnesses (see Rule 44.01 and Form 44A Supreme Court Rules (General Civil Procedure) Rules 1996). The lawyer is obliged to give the expert a copy of the relevant rules/code.
Conferencing with other experts
The court may require experts for all the parties to the legal proceedings to meet and resolve any conflicts in the expert evidence.[Next: Supporting documents and information ]