Can an Expert address the Ultimate Issue?

The question often arises of whether or not an Expert can, or should, provide an opinion on whether the facts they are instructed to assume and the results of their own opinion lead to a specific legal result.

Opinion evidence – expert opinion exception

Opinion evidence is prima facie not admissible (s76 Uniform Evidence Acts) because it is unreliable and potentially usurps the Judicial decision making role of interpreting facts.

An exception to the general opinion rule is expert opinion evidence (s79). Where there is a field of specialised knowledge (field of expertise) and the person has that specialised knowledge because of their training, study and experience (an expert) and provides an opinion within their expertise (expert opinion) it is likely to be sufficiently reliable to assist the Court and is therefore admissible.

Ultimate Issue Rule

There is a long history of argument that an expert should not comment on the ultimate issue for determination because that goes further than just providing an opinion within their field of expertise and, at that point, becomes inadmissible because it usurps the Judicial role.

Because of that view of the Ultimate Issue Rule expert opinions often went right up to the point where it was (hopefully) obvious what the expert thought the answer to the question for the Court was, but they did not write the concluding sentence or paragraph.

However, a proper analysis of the law relating to the Ultimate Issue Rule shows that it was always more accurately characterised as an example of the requirement that an opinion not be a mere ipsa dixit (because I say so!) statement. As the Full Federal Court stated in Arnotts v TPC:

“It is often said that an expert cannot give an opinion as to the ultimate fact that the court has to decide. This is inaccurate, as experts, especially valuers, often give evidence as to the ultimate fact, and in many cases the question whether that fact exists can be answered only by experts … What the rule really means is that an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law.” (See: Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313, 350 (Lockhart, Wilcox and Gummow JJ) quoting R Eggleston, Evidence, Proof and Probability (2nd ed, 1983), 147–148.)

Given the above understanding the ultimate issue rule was specifically abolished (s80) in 1995 in NSW and in other jurisdictions which apply the Uniform Evidence Act. In jurisdictions which technically retain the rule it’s proper application should not constrain an expert in the way it was so often suggested it did.

Ultimate Issue Rule – Dead but Not Buried

Despite it’s abolition, and the fact that it didn’t actually mean what it was so often cited to mean, the principles underlying the Ultimate Issue Rule are often cited to seek to constrain experts from applying a legal standard to facts, including facts which are established by their opinion.

To be clear, the expert who provides an opinion may apply a stated legal standard to facts founded on their opinion in order to fully explain their opinion, but is not entitled to purport to apply the law to the facts generally. (See Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79, esp at 83-84.)

So can an Expert provide an opinion on the ultimate issue?

Yes.

So long as the opinion fully expresses all of their assumptions and the reasoning process by which they have applied their expertise to those assumed facts, and how they have applied the explicitly stated legal standard to the facts reached by their opinion.

I should note that some Counsel prefer that an expert not do so, for forensic reasons, but there is a good argument that in providing their full and transparent opinion to assist the Court the Expert should not stop just short of addressing the ultimate issue when they are in a position to do so.

Bruce Smith

Questions or feedback welcome to:  BSmith@expertexperts.com.au or brucesmith@jackshand.com.au

This is not legal advice.  I regularly conduct discussion groups on discrete issues in different areas of expert evidence to promote thinking amongst expert witnesses and those who retain them.  It’s been suggested my short synopses might be of interest to others.  If they are I’ll post more.

Seminars: I regularly present seminars on different areas of expert evidence for the Law Society of NSW, sometimes with experts in those fields.  I am open to presenting these seminars in-house to larger firms and insurers for whom sending large numbers of people to the Law Society seminars is not practical.

Next Law Society seminar is 12 September 2017:

Dealing with clients with (possible) impaired mental capacity: with Therese Catazariti of 13 Wentworth, Professor Coyle and Alicia Tyler psychologists.  http://eshop.lawsociety.com.au/index.php/catalog/product/view/id/3920

Advertisements

Assessing Testamentary Capacity at Time of Will: New “Rules of Thumb” for Solicitors – Supreme Court NSW

In Ryan v Dalton (31 July 2017) Justice Kunc provided a “postscript” on “questions of capacity” “proposing some basic rules of thumb” as “basic precautions” particularly in relation to “anyone:

(a) over 70;
(b) being cared for by someone;
(c) who resides in a nursing home or similar facility; or
(d) about whom for any other reason the solicitor might have concern about capacity.”

His Honour noted that

“the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death”.

These “rules of thumb” may be “offered only as suggested basic precautions” but will inevitably be argued at some stage as providing a clear baseline for assessing whether a solicitor met their standard of reasonable care in the execution of a will or other similar transaction.

The requirement for an interview without other people and using open rather than leading questioning also provides clear guidance for experts in the assessment process.

In summary, if in doubt spend a small amount of money now to have an independent assessment of capacity to save running a major trial 10 years later.

Click here for details of an upcoming Law Society and Expert Experts joint Seminar.

The “Postscript” is set out in full below.

Estate of Ryan [2017] NSWSC 1007 (31 July 2017)

Postscript – the need for continuing legal education on questions of capacity

101. The demographic reality of an aging population means that the likelihood of challenges to wills on the ground of testamentary capacity is increasing. Two recent government reports on elder abuse have made recommendations in relation to the role of lawyers and legal education. Those matters, when also considered in the light of recent decisions of this Court on the question of testamentary capacity, suggest that it is appropriate to conclude this judgment with some observations divorced from the personalities and facts of this particular case.

102. The New South Wales Legislative Council’s Report on Elder Abuse in New South Wales (24 June 2016) included this recommendation:

“Recommendation 8

That the NSW Government liaise with Law Society of New South Wales to request the Society include a unit on the assessment of mental capacity in respect of substitute decision making, wills and property transactions in its Continuing Professional Development Program for legal practitioners.”

103. More recently, the final report of the Australian Law Reform Commission “Elder Abuse – a National Legal Response” (ALRC Report 131, May 2017), included this recommendation:

Recommendation 8-1 The Law Council of Australia, together with state and territory law societies, should develop best practice guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they provide thorough coverage of matters such as:

(a) elder abuse in probate matters;
(b) common risk factors associated with undue influence;
(c) the importance of taking detailed instructions from the person alone;
(d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents; and
(e) the importance of ensuring that the person has ‘testamentary capacity’ — understanding the nature of the document and knowing and approving of its contents, particularly in circumstances where an unrelated person benefits.”

104. The Court notes that the NSW Law Society’s publication When a Client’s Capacity is in Doubt: A Practical Guide for Solicitors was reissued in 2016.

105. Assistance in relation to making a will remains one of the most likely reasons for Australians to seek the assistance of a solicitor. The demographic trend to which I have referred suggests that a good understanding of the issues surrounding mental capacity is an essential skill for any solicitor who holds himself or herself out as competent to provide legal services to natural persons. It is to be hoped that the recommendations of the two recent reports, will be acted upon as quickly as possible.

106. Questions of testamentary capacity are necessarily fact sensitive. No rule or procedure will cover every case to avoid the possibility of litigation. Nevertheless, the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death. Bearing that in mind, and without wishing in any way to derogate from, for example, the desirability of all solicitors being familiar with the guidelines, the recent experience of the Court suggests that proposing some basic rules of thumb (which, as such, are necessarily arbitrary) may be of assistance.

107. It seems to me that the following is at least a starting point for dealing with this increasingly prevalent issue:

(1) The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary.

(2) A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases.

(3) In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note.

(4) In case of anyone:

(a) over 70
(b) being cared for by someone;
(c) who resides in a nursing home or similar facility; or
(d) about whom for any other reason the solicitor might have concern about capacity,

the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries.

(5) Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided.

108. I emphasise that the foregoing is offered only as suggested basic precautions which may identify problems which need to be addressed. In many cases which do come before the Court the evidence of the solicitor will be critical. For that reason, it is essential that solicitors make full, contemporaneous file notes of their attendances on the client and any other persons and retain those file notes indefinitely.”

SEMINARS AND REPORTS

NSW Law Society & Expert Experts seminar on Testamentary Capacity 12 September 2017:

Dealing with clients with (possible) impaired mental capacity: with Therese Catazariti of 13 Wentworth, Professor Ian Coyle and Alicia Tyler psychologists.

Expert Experts – Testamentary Capacity Assessments

Bruce Smith

Questions or feedback welcome to:

BSmith@expertexperts.com.au or brucesmith@jackshand.com.au

This is not legal advice. I regularly conduct discussion groups on discrete issues in different areas of expert evidence to promote thinking amongst expert witnesses. It’s been suggested my synopses might be of interest to others. If they are I’ll post more.
Seminars: We regularly present seminars on different areas of expert evidence for the Law Society of NSW, sometimes with experts in those fields. I am open to presenting these seminars in-house to larger firms and insurers for whom sending large numbers of people to the Law Society seminars is not practical.

TPD: “Labour Markets” v “Reasonably Accessible” – Part 2

Thank you for all of the email feedback.  A number of people asked whether any labour market evidence was required if the “reasonably accessible” labour market test does not apply.

“Employability”

“Employability” is invariably stated to involve the existence of “real” and not “hypothetical” “jobs”.  A review of the Authorities suggests that the key factors the Courts consider when asking whether or not proposed work options are “real” and not “hypothetical” are whether they are jobs:

  1. which are within the member’s physical capacity; and
  2. which are within the member’s psychological capacity; and
  3. which have tasks requirements which are within the members transferable skills based on their education, training and/or experience (ETE); and
  4. which actually exist in practice; and
  5. which the member would have a real prospect of obtaining, performing and holding in the open labour market;
    1. given their capacity as above, and,
    2. given where the jobs are located relative to them (reasonably accessible).

Real Jobs (Existence) and Real Prospects

Labour market evidence goes principally to the issues of the “existence” of real jobs which the member can safely perform physically, psychologically and within their transferable skills, and to the “prospect” that they can actually obtain such a job, including both the assessment of their prospect as a job seeker for a job which exists and the investigation of whether those jobs exist where they live.

A person may be capable of obtaining and performing work as a miner, but if they live in the middle of a capital city it may not be a reasonably accessible job.

Viewed in that light the “reasonably accessible” element is an additional limiting factor on the “labour market” tests of existence and prospects, and severable from it.

Evidence of existence and prospects required

Given that the Insurer bears a reversed evidentiary onus to establish “employability” after the member makes a prima facie case by reference to their pre-injury or illness job I would suggest that labour market evidence establishing existence and prospects is still required.

Relevant Labour Market map-of-australia-3d-model-max-obj-3ds

That raises the question of what labour market may be considered to establish existence and prospects.

Given that an insurance contract should be given a business like interpretation considering the language, commercial circumstances and objects of the contract, if the “reasonably accessible” test based on home address is excluded that would arguably encompass a labour market including at least the State or Territory of the member’s current residence, possibly any State or Territory of residence since the date for assessment, and once the concept of moving for work is accepted then arguably all of Australia.

Bruce Smith

Questions or feedback welcome to:  BSmith@expertexperts.com.au or brucesmith@jackshand.com.au

This is not legal advice.  I regularly conduct discussion groups on discrete issues in different areas of expert evidence to promote thinking amongst expert witnesses.  It’s been suggested my synopses might be of interest to others.  If they are I’ll post more.

Seminars: I regularly present seminars on different areas of expert evidence for the Law Society of NSW, sometimes with experts in those fields.  I am open to presenting these seminars in-house to larger firms and insurers for whom sending large numbers of people to the Law Society seminars is not practical.

Next Law Society seminar is 12 September 2017:

Dealing with clients with (possible) impaired mental capacity: with Therese Catazariti of 13 Wentworth, Professor Coyle and Alicia Tyler psychologists.

 http://eshop.lawsociety.com.au/index.php/catalog/product/view/id/3920

TPD: Reasonably Accessible Labour Markets

lma picThe assessment of the reasonably accessible labour market arises in employability assessments in TPD, as well as in earning capacity assessments at common law or in workers compensation.

However, because the substantive legal principles and issues for determination in TPD are different to those at common law the application of the vocational assessor’s expertise to the TPD problem must also be different for the opinion to be relevant, reliable and admissible.  Merely adopting the standard rehabilitation style report is clearly inadequate in a TPD case. (see Justice’s Ball’s interlocutory decision rejecting such a report in Erzurumlu v Kellogg Superannuation).

While a reasonably accessible labour market test always applies in common law cases it may apply in TPD cases.

“Unable to”: The issue is highlighted by Hannover Life Re of Australia v Cesario Collella [2014] VSCA 205 at [34].   The policy term was “unable to do any work”.  Overturning the Judgment at first instance the Victorian Court of Appeal found that imposing a test of “the existence of work ‘which is reasonably accessible  in the market place and in an area in which it could be expected an insured in the position of the claimant could reasonably apply’ … went too far”.

The legal test was “unable to” which did not require a job in a reasonably accessible labour market.

This means that the question of a reasonably accessible labour market is not necessarily inherent to the definition of TPD, as it is at common law, but may or may not be a requirement depending on the terms of each policy.  It also suggests that the specific labour market factors which must be considered may vary from policy to policy.

“Unlikely ever to”: The Courts generally apply a reasonably accessible labour market test to “unlikely ever to” definitions.  However, unlike common law cases in which the reasons for applying a reasonably accessible labour market test are clear, in many TPD cases it is just assumed.

The Courts have (apparently) adopted and applied the common law view by way of an implicit argument that a reasonable interpretation of the policy does not envisage the member would be required to move address to seek work.  The member’s current address and the reasonably accessible labour market are therefore factors relevant to the “likelihood” of the member ever working again.

While the above interpretation is clearly open, it is not clear that it has been fully tested, and nor is it clear that it is generally appropriate to apply that test to “unlikely ever to” policies without closer analysis (given that it is not necessarily an inherent criteria of a TPD definition per Collella).

For example, it may be open to argue that a reasonable commercial interpretation of a TPD contract would be to extend the concept of assumed motivation to exercise residual capacity to include an assumed motivation to move in order to get work.  This is something that people do across Australia every day and many statutory compensation schemes now make this assumption.  If this reflects current views of what is reasonable that is arguably relevant to the interpretation of a TPD policy.

Also highlighting this question is the issue of which address to use when a member moves after the date for assessment?  Does the “likelihood” relate to the labour market accessible from:

(i) Their address at the date for assessment?

(ii) The address the member has moved to?

(iii) Either address ( ie would the likelihood of work in either labour market exclude them from the TPD definition?

Further, how does this evidence that the member chose to move sit with an underlying assumption that you need to review a specific reasonably accessible labour market because people don’t move, and what if they’ve moved to an area of lower likelihood of employment?

A lot of interesting questions to consider, and hopefully see determined by the Courts, regarding this important but often misunderstand and unexplored expert issue in employability and TPD.

Bruce Smith

This is not legal advice.  I regularly present short seminars on very discrete issues in different areas of expert evidence to promote thinking amongst expert witnesses in those areas.  It’s been suggested my short written summaries might be of interested to others.  If they are I’ll post more.

Expert Conclaves: Why expert conclaves go so wrong, so badly and so often.

http://www.lawyersweekly.com.au/sponsored-features/17509-why-expert-conclaves-go-so-wrong-so-badly-and-so-often

Only 10 years after the Rules and Practice Notes mandated Conclaves and Joint Reports in NSW the Courts are starting to impose them, and for the unprepared the results aren’t pretty.

The Courts have been concerned about the impartiality of expert witnesses since at least 1843.i

Those concerns eventually led to the introduction of Expert Witness Codes of Conduct ii in most jurisdictions (by the start of the 21st Century) as well as to Rules iii and Practice Notes iv for conclaves and joint reports. facepalm

Although introduced in 2005 in NSW, for a variety of reasons conclaves and joint reports have been relatively rare occurrences in many areas of practice and jurisdictions. But not anymore.

Parties are finding that the Courts are taking up these procedures with a will, and the indications are that this trend is likely to increase until they are the norm.

Many practitioners are (rightly) concerned with this trend given just how many conclaves and joint reports have gone so badly wrong.

The simple fact is that while the objectives are good, in most cases the processes around conclaves and joint reports are bad, which is why so many conclaves and joint reports go wrong so often.  By “wrong” we don’t mean that a particular party didn’t get the substantive outcome it hoped for, but that the process utterly failed to achieve the stated objectives of holding a conclave and obtaining a joint report.

One of the key features of this process is that practitioners are usually not present at conclaves and have no input into the preparation of the final joint report, and so do not know why the process has failed.

For that reason Expert Experts conducted in-depth qualitative interviews with a range of experienced expert witnesses about conclaves and joint reports.

Their answers were illuminating, and point to some obvious flaws with current “standard” processes being adopted by many legal practitioners. The key findings were that most expert witnesses:

  1. Liked the idea of conclaves. They see real benefit in professional peers being able to discuss and resolve, or at least clarify and narrow, issues in the absence of pressure from clients and lawyers.
  2. Had participated in some successful conclaves, which produced joint reports that clarified and narrowed the issues in dispute in line with the objectives of the process.
  3. Had, however, participated in a larger number of “failed” conclaves. Problems included: disorganised conferences; over-bearing personalities; a lack of agreement as to what the issues or questions posed meant; disagreements as to what the obligation to seek to resolve issues meant (were they meant to “horse trade” concessions to “settle” the matter?); lack of basic administrative resources to prepare a joint report at the time; confusion over what to do when the conclave was clearly degenerating; difficulty co-ordinating the preparation of a joint report after the conclave was over; and numerous other issues. These issues had resulted in poorly drafted and confusing joint reports that did not assist any party or the Court.
  4. Thought that the main reason conclaves and joint reports went wrong was the failure to have in place a settled, structured, closely managed and supervised set of procedures to facilitate the conclave and joint report process.  The general guidance to legal practitioners and experts contained in current Rules and Practice Notes was not considered sufficient.  Further, each firm of solicitors apparently has a unique view of the “usual practice” that should be followed.
  5. Thought that the factor most likely to contribute to a conclave and joint report being successful was the presence of an independent experienced facilitator / chairperson, either an independent legal practitioner or expert with experience in the process, who facilitated and coordinated the entire process from start to finish, including dealing with all administrative issues, impartially assisting the experts to liaise with the parties and legal representatives to clarify the issues and questions to be addressed, and assisting the experts in preparing a useful joint report reflecting all experts views in an appropriate form to assist the Court and parties.

In summary, if you’re are relying on a “process” premised on a group of often sole practitioner experts with varying degrees of experience with conclaves, and busy professional schedules, coordinating among themselves to produce a joint report that adequately addresses all of the relevant issues in a useful and potentially admissible form, without any one person being ultimately responsible for delivering the outcome … good luck. You’ll need it.

If you want a realistic chance of a sensible outcome that achieves the objectives of the conclave and joint report process you need to have an actual “process”. The best way to do that appears to be by appointing an independent facilitator to manage the process in the same way that legal practitioners are case-managed by Registrars and Judges, with the facilitator also acting as the central coordinating point between the parties, the experts and the Court.

There’s a cost to having a facilitator, but discussions with legal practitioners who have had conclaves go wrong suggest that it’s nominal compared with the costs of trying to untangle and deal with the consequences of a conclave and joint report gone wrong.

Notes: 

This article is a summary of some parts of a Joint Paper entitled “Expert Witness Conclaves Explained” prepared by Eugene Romaniuk S.C. and Bruce G. Smith, Barristers, of Jack Shand Chambers.

Mr Romaniuk S.C. http://www.jackshand.com.au/barristers/senior-counsel/eugene-romaniuk-sc/

Mr Smith http://www.jackshand.com.au/barristers/counsel/bruce-smith/

That Joint Paper was in turn based in part on proprietary research conducted by Bruce Smith in his capacity as a Director of Expert Experts Pty Ltd, on informal discussions with various Legal Practitioners, as well as on a review of Authorities on Conclaves and Joint Reports.

Links:

UCPR 2005 (NSW)

Part 31.24  http://www5.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s31.24.html

Part 31.25  http://www5.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s31.25.html

Part 31.26  http://www5.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s31.26.html

Supreme Court Practice Notes

Practice Note No. SC Gen 11 – Joint Conferences of Expert Witnesses – 17 August 2005

http://www.lawlink.nsw.gov.au/practice_notes/nswsc_pc.nsf/a15f50afb1aa22a9ca2570ed000a2b08/991e2f2f3bcd8289ca2572ed000cec4b?OpenDocument

Practice Note No. SC CL 5 – Supreme Court Common Law Division – General Case Management List – 29 January 2007

http://www.lawlink.nsw.gov.au/practice_notes/nswsc_pc.nsf/a15f50afb1aa22a9ca2570ed000a2b08/4cd3129c77a5419cca2572ed000ceca8?OpenDocument

Selected interesting cases on Conclaves and Joint Reports:

Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 (Hall J)

https://www.caselaw.nsw.gov.au/decision/54a63cda3004de94513dba94

X v Sydney Children’s Hospitals Specialty Network (No 5) [2011] NSWSC 1351 (Adamson J)

https://www.caselaw.nsw.gov.au/decision/54a6364c3004de94513d9088

i See; The Tracy Peerage (1843) 10 Cl & F 154 at 191 8 ER 700 at 715, and more generally, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [56]–[58] (Heydon J).

ii Eg – Schedule 7 to Uniform Civil Procedure Rules 2005 (NSW), see also, The Ikarian Reefer (1993) 2 Lloyd’s Law Reports p.68, and, Whitehouse v Jordan (1981) 1W.L.R. 246

iii See: Uniform Civil Procedure Rules 2005 (NSW): Part 31 “Evidence” Subdivision 2 “Expert witnesses generally” Rules 24 “Conference between expert witnesses”, 25 “Instructions to expert witnesses where conference ordered before report furnished “ and 26 “Joint report arising from conference between expert witnesses”.

iv See: NSW Supreme Court Practice Note SC Gen 11 “Joint Conferences of Expert Witnesses” 17 August 2005; and; NSW Supreme Court Practice Note SC CL 5 “Common Law Division – General Case Management List” 29 January 2007 – see clause 36-40 which makes a Joint Report the default position in personal injury actions.

Practical tips for dealing with Expert Witnesses

Expert Experts surveyed experienced expert witnesses across a wide range of fields.

They were asked what feedback they would like to give to lawyers. Some very consistent themes emerged relating to fundamental matters. The key responses are summarised below.

Expert dictionary 2

INSTRUCTIONS

The quality of the instructions influences the quality of the opinion and report. The quality of the report you get will reflect the quality of your instructions.

Poorly considered or inadequate instructions were ranked as the most persistent and significant issue by the experts surveyed. Carefully considered and drafted instructions are a necessary prerequisite to obtaining a quality report.

Inadequate instructions will hamper the best efforts of the most diligent and capable expert; even the most highly qualified and skilled expert may produce something effectively useless if the instructions are very poor. Clear instructions are essential to obtain a high quality report.

The aim of the engagement State the aim(s) of the engagement as clearly as possible and be willing to speak with the expert.

If you can state succinctly the proposition or question that would ideally appear at the beginning of an expert report, you are likely to get a report that meets that aim. Failure to state the aim clearly is likely to result in a report that does not meet these objectives.

If you are uncertain of the aim of the engagement and cannot convey clearly and precisely the issues in the case, and what questions or matters the expert has been retained to address or illuminate, the likelihood that the expert will stumble upon and address these issues is slim at best. A useful report will be the exception rather than the rule and, if it eventuates, it will be the result of luck not skill.

Sometime the initial role of the expert is investigative and needed to help determine and scope the expert questions (as often happens in accident incident investigation or other areas requiring forensic analysis). In such circumstances, a broader statement of the aims that acknowledges this fact is more likely to allow the expert to assist you to refine and define the issues than would a very narrow statement of aims at that early stage.

Where you wish to pose very narrow questions, it is beneficial to provide background information as a context for those questions to make it clear to the experts that the strictures being placed upon them are appropriate. Without that context, many experts will have concerns about their capacity to comply with Code of Conduct requirements (that their report not be misleading by omission), and feel obliged to make a statement to that effect, or to the effect that if left to their own devices they would have considered and investigated matters other than those they have been asked to address.

The instructions and associated questions constitute the questions-in-chief that would be asked in court to elicit and expert’s evidence. Therefore, these should ideally be crafted with the same level of care that would be used in formulating those questions in court.

If the case is complicated, arrange to hold a short conference, including by telephone or Skype, with the expert after they have had a chance to consider the instructions and material provided and before they embark on preparing their report. Many potential issues can be avoided by an early, 10-minute conference.

Assumed facts and factual disputes Specifically list all of the ‘facts to be assumed’, distinguish them from ‘background’ information, and clarify which if any facts are to be assumed where inconsistent factual propositions are contained in the material provided.

It is apparently common for an expert to provide a report relying on all of the facts referred to in a letter of instructions only to be told subsequently that some of the statements of fact were provided merely as ‘background’ or ’context’ and should not be relied upon.

Similarly, witness statements and other documents containing inconsistent factual statements are provided with no guidance as to whether any of the statement of fact are to be treated as assumed facts, and if so which ones. This is particularly likely to lead to confusion if there is no statement of assumed facts in the instructions.

Consequently, experts are regularly required to amend draft reports or provide supplementary reports based on quite different assumed facts. This can have a significant impact upon both the opinion and the cost of the report.

Using a heading such as ‘Assumed Facts’ or ‘Facts to be Assumed’ and then specifically list all of the facts the expert is to assume. Do that even if those facts are set out or referred to elsewhere in the instructions when providing an overall picture or other comment.

The assumed facts do no need to be in a list form. A narrative statement of the facts to be assumed can be equally useful. The point is that the expert must be easily able to identify and record in their report all of the facts that are to be assumed.

Acknowledge factual disputes rather than trying to hide them.

Where there are assertions of fact contrary to the facts that are to be assumed, it saves time and addresses potential ethical concerns if such disagreements are acknowledged in the letter of instructions.

A simple statement to the effect that there are contested facts on a number of issues, and that an opinion is sought based only on the facts which the instructing party asserts should be accepted and which are set out as the ‘assumed facts’, will usually deal with this issue. However, it may be better to set out the contested factual issues fully for the expert at the time they are instructed of the facts to be assumed.

Many experts are wary of a situation where they know there are likely to be disputed facts and they are not made aware of the potential disputes. Further, not know what the contested factual issues are or may be can put the expert at a disadvantage when they are later asked to deal with them in a conclave or in evidence.

Documents

Think of every suggestion you have ever had from counsel about preparing a brief and apply that to your expert brief.

Start with a list of documents so that the expert knows what they are supposed to have. It is surprising how often the critical documents are said not to have been provided because, for example, they were identified as important and extracted from the original subpoenaed or discovered documents bundles and then not separately copied and provided.

Have someone sort the documents as best they can and extract duplicates. While it is often part of the expert’s function to review technical and other documents to determine what they contain and whether it may be relevant, having an expert review jumbled piles of subpoenaed and discovered documents is inefficient and expensive – particularly where the documents are voluminous.

Documents in an electronic format, which allows text search and extraction and electronic mark-up, are easier to use and save time and costs.

Photographs provide in JPEG or similar file formats allow the image to be viewed on large screens at high definition. This can significantly increase an expert’s understanding and ability to provide an opinion. On the other hand, a black and white photocopy of a photograph is rarely useful and is often misleading.

Oral opinion

An oral opinion is a preliminary opinion

An oral opinion provided without the disciplined process of writing and reviewing a written report is necessarily a preliminary opinion, and potentially subject to change. Many experts will not provide them and those who do will generally advise that the opinion is purely preliminary.

Fees

Require a clear fee agreement from the expert

For the same reasons you have one with your client: it saves a lot of anguish down the track.

CONCLAVES

Agree and write down the rules, have a neutral moderator and venue, and have your expert assist in identifying the issues and drafting the question for the conclave.

Conclaves are an area where stories about the process descending into costly, frustrating and pointless farce abound.

Conclaves have enormous potential to save time and costs by clarifying and significantly narrowing the issues. In practice, that potential is apparently only rarely achieved because the process is uncertain and often unsupervised.

Most lawyers apparently advise the expert that there is a set of clearly accepted practices for the conduct of a conclave. Unfortunately, those clearly accepted practices appear to vary significantly from lawyer to lawyer and firm to firm. The absence of clear, long-standing practice means that conclaves are often a source of concern and confusion for experts and result in poor or very sub-optimal outcomes.

A statement of agreed rules is essential. A form of standard directions for the conduct of conclaves, perhaps with options addressing the common problems that could be agreed or ordered, would greatly assist the process.

Common problems apparently include:

  • One expert being told they cannot communicate with their lawyers while another is being told that they can, with each acting according to their instructions;
  • Lawyers providing new material to one expert to take directly to a conclave without first serving the material
  • Competing lists of questions or directions from each side
  • Questions or directions which make little or no sense even to the expert retained by the party asking the questions;
  • Arguments about electronically recording the conclave at the insistence of one expert or another or on the instructions of one lawyer or another;
  • The practical difficulties in co-ordinating the process of drafting and then settling a joint report or statement during or after a conclave which accurately reflects the areas of agreement and disagreement, and any other matters requiring a record;
  • Some experts declining to take a position on the basis that they need further time to consider an issue, and the issue of agreement or disagreement and reasons remaining unresolved to due to a failure to arrange a follow-up conclave;
  • One set of lawyers turning up and insisting on listening when the other lawyers are not present;
  • All lawyers being present and unduly interfering in the process, including arguing about what is and not acceptable and who is and is not unduly interfering in the process;
  • Arguments about the venue in the absence of a neutral meeting place, and inadequate venues and facilities
  • Aggressive or arrogant experts seeking to overbear their peers in a closed conclave; and
  • Arguments about whether the direction to endeavour to reach agreement requires the experts in conclave to ‘negotiate a settlement’ of the expert issues, by each agreeing to concede some issues despite their genuinely held opinion, in order to reach a ‘consensus position’ which no expert believes represents the true position, to save the lawyers and courts from settling or deciding the issues.

An independent moderator appears to be a key factor in achieving a useful outcome, except in simple cases, involving only 2 experts and very narrow issues. The moderator may be able to address and overcome many of the above issues by co-ordinating the experts and liaising with the lawyers to resolve process disputes. A moderator should either be an independent lawyer, or an expert with experience in the expert witness process.

MULTI-DISCIPLINARY REPORTS AND ISSUES

Do not expect your experts to co-ordinate multi-disciplinary or interlocking reports

When a single issue crosses fields of expertise so that a multi-disciplinary report, or reports, which must overlap and interlock to cover the field, are required, it is unwise to ask one of the experts to be responsible for co-ordinating that process. The involvement by one expert  in the preparation of another expert’s report needed to interlink with their own is fraught with peril and is more likely to lead to reports that are not useful and do not fully cover the issue.

The process needs to be co-ordinated. An independent expert familiar with the field who is not providing an opinion may be able to assist in co-ordinating the various expert opinions required, but will still require instruction and supervision.

HEARING

Check availability before setting a matter down for hearing; consider telephone evidence where is it available; and properly confer with the expert prior to calling them to give evidence.

It is difficult to cancel an overseas holiday on one week’s notice. Calling an expert 10 days into a trial after a brief conference from 9:25am to 9:40am is unlikely to allow them to perform adequately.

OTHER EXPERTS
Don’t assume your expert will think the other experts are crooks just because they disagree.

The seven leading experts on Australian law sitting, from time to time, as the High Court of Australia, regularly disagree on fundamental matters of principle without it being assumed that any of them is dishonest. That despite the fact that the law is a purely constructed field, so that the range for genuine disagreement in far narrower than in scientific or other fields  where there are still many unknowns and the state of knowledge is constantly changing. Similarly, commentators who follow their work are often able to predict accurately how these legal experts will divide on a particular issue, because of their previously expressed views, without it being assumed their opinions can be bought.

Just as one judge would not take kindly to other judges with different views being referred to as hacks or frauds because of a bona fide disagreement, so too with experts and their professional peers. The apparently common assumption that experts generally hold dismissive views of their peers on the other side of an argument, and are therefor usually comfortable hearing them disparaged as charlatans and guns-for-hire, is misplaced. An expert’s perception that a lawyer views any expert not in agreement with their current client’s case with contempt is not likely to facilitate a good working relationship.