Expert witnesses play a critical role in the determination of many disputes. Unlike lay witnesses, expert witnesses are able to provide their opinion on relevant aspects of a case. Regardless of which party is briefing them, the role of an expert witness is to provide relevant and impartial evidence in their area of expertise, which will assist the Court in reaching a conclusion in the proceedings. As a result, the role of lawyers (acting in the interests of their client) in the preparation of expert evidence has been the subject of scrutiny in a number of cases.
On 22 October 2021, Justice Dalton published her reasons for judgment in the matter of Landel Pty Ltd & Anor v Insurance Australia Limited [2021] QSC 247, which provides further helpful guidance for both legal and expert witness professions.
The case involved a claim on an insurance policy following damage suffered to a shopping centre during monsoonal rain and subsequent flooding in Townsville in late January and early February 2019. The cause of the inundation was the subject of expert evidence which occupied almost all of the trial time. In the decision, the Court helpfully provides guidance in paragraphs [18] to [37] on the roles of lawyers and experts in the preparation of expert reports, and we invite those interested to read those paragraphs in particular.
From those paragraphs, we summarise the eight essential takeaways.
- It is acceptable (and usually desirable) for an expert to give lawyers and counsel a draft report and for lawyers to become involved in the editing process, so that the report is presented in a way which is accessible and comprehensible and does not contain irrelevant material. It is also permissible for lawyers to draw the expert’s attention to any inconsistencies or gaps in their reasoning.
That said, it always remains the case that lawyers must not coach expert witnesses or influence the substance of an expert report, which must be the expert’s impartial opinion. The expert should only revise a draft report if they are able and willing to do so in accordance with their duties as an expert. Further, in proceedings in the Queensland Courts, draft expert reports are disclosable so that the effect of any input from the legal team will be obvious to the other parties to the litigation. - Regular structured conferences between the expert and the legal team are encouraged so that matters of substance can be drawn out and both the experts and lawyers can continually evaluate the strength of the case. Conferences should occur in the early stages of litigation when alternatives might still be open should weaknesses in the case be revealed.
- Caution should be exercised if an expert has previously received a direct brief from a party (rather than through the lawyers). This may be a valid basis for criticising an expert’s independence. However, in this particular case, the expert displayed an impressive and professional demeanour when giving evidence and the previous direct brief did not cause the Court any disquiet about the expert or his opinions.
- The Court recognised the common practice of an initial oral retainer between the expert and the lawyers, and an initial verbal exchange of views prior to the engagement of an expert. The Court saw no difficulty with that approach (although notes taken by a lawyer when an expert is giving an oral opinion may be disclosable, even if the opinions given are not favourable).
Experts however should ensure they receive written instructions once it is clear they have been retained and before any substantive work (such as the production of any draft written reports) is undertaken. For lawyers to retain an expert to start doing substantive work before written instructions are provided has the potential to give the impression that something ulterior is going on. - Rule 423 of the Uniform Civil Procedure Rules limits a party to one expert opinion unless leave is given. However, where a party retains two experts to address similar questions with a view to bolstering its position (by having two experts verify a position or outcome), conferences should not be held with both experts together. Meeting with the experts together, particularly before they have committed their views to writing, has the potential to compromise the experts’ independence.
- The Court made some helpful observations with respect to the preparation of an expert report prepared with the assistance of a number of people within a firm, which is then signed by a principal or partner of the firm (with an acknowledgment that they were assisted by others). The court considered that in such cases, there is no objection to persons working as a team and, where the report ultimately presents one expert opinion, there is no objection to all of the persons involved conferring with the lawyers together and working together.
However, care should be taken to ensure that there is no confusion in the process, especially if persons working on the report are not from the same company and are providing two separate independent opinions. In this particular case, the ultimate report produced was branded with only one of the experts’ logos and presented as coming from one source, rather than being presented as two separate independent opinions. - In written reports, experts should not attempt to assume the role of an “uber-expert” or a judge in terms of explaining why one expert’s evidence is to be preferred over another. That is not the role of an expert witness.
- Finally, it is also not the role of an expert witness to concern themselves with legal issues in the case. It is the job of the lawyers to carefully define questions upon which they seek expert opinion, so that the opinion is relevant to the legal issues in the case. In this case, the Court thought it was unfortunate that all of the experts had been briefed with the words of the insurance policy under consideration.