Given how common it is for expert evidence to be used, I thought it might be useful to reflect on when expert evidence is allowed in court as well as when and how it should be used.
Lawyers in any legal proceeding need to ask what evidence do I need to prove in order to argue the client’s case and from where or whom will that evidence come. Evidence may be in the form of physical evidence, documents or oral evidence. Witnesses may be either lay or expert witnesses.
Who is an Expert?
The Court Rules define an expert as “a person who has specialised knowledge based on the person’s training, study or experience” (Victorian Order 44.01). The expert witness role is not to give evidence about events s/he observed or was involved in. That is the role of the lay witness.
The expert is giving an expert opinion, based upon the evidence that is given in the case, whether that evidence is oral, documentary or based upon physical examinations. An example of physical observation would be those undertaken by a forensic pathologist or scientist who observes either the injured or deceased person or the crime scene/ scene of the incident and then reaches an expert opinion about the matters requiring it.
S/he assists the Court with information about a specialist area so that the Court can make its decision. The expert is therefore not an advocate for a party to the litigation nor the decision maker or Judge. Accordingly, the expert must independently reach an opinion and be satisfied that it takes into account all relevant matters, including those contrary to the opinion formed.
What Expert Evidence is Required?
The first question that arises is what is needed to be proven by any expert evidence. Once that has been determined, the second question is what discipline or area of expertise is required to provide such expert evidence. Only then is one in a position to choose an expert appropriate to give that evidence. It may be that a single person does not have all the expertise required and therefore more than one expert is required.
While the above may seem trite, the failure to properly follow each and every step above can be fatal to a case. Why?
Unless you properly identify the questions that need answering, no answer is possible. Conversely, the wrong question, even if answered correctly, will not lead to the correct answer because the answer reached is not relevant.
What Type of Expertise is Required?
Who is required as an expert would depend upon the individual facts of the case. The point is that the disciplines of the expert need to be carefully considered and matched to the evidence required.
By way of example, if an insured tried to claim consequential losses under an industrial special risks insurance policy, but some of those consequential losses had nothing to do with the insured event, is an accountant necessarily the person required to give evidence for the insurer to show those economic losses were outside of the cover provided? If a company had supply pipeline or manufacturing process problems prior to the event, then a production or other type of engineer may be the person required as the expert to prove such matters. It depends on the case.
Another potential problem is that an expert may not have the specific expertise to qualify as an expert for the particular issues of the case. If the expert is not considered an expert in that area, s/he may not be allowed to give the evidence or whatever evidence allowed may not be given the same weight as a more qualified expert in that area.
The ability of an expert is explain, both in writing and orally, the technical subject matter and the technical issues and arguments involved in a manner that is easily understandable is critical. If the lawyers cannot understand what is being said, the likelihood of a judge understanding it is minimal.
The expert must be independent and objective, not an advocate for the party. The expert must be a person of integrity.
Instructing the Expert
It is also critical that the questions or issues upon which the expert is asked to opine are considered carefully. S/he must understand the correct legal tests to apply and know the limits of his or her expertise. If issues are outside those limits, the expert must say so as soon as possible so that the necessary steps can be taken.
The expert must be properly briefed with the relevant information and documents and advise if anything further is required in order to form an opinion. There is no point in an expert reaching assumptions when there may be actual evidence available that overcomes the assumptions. A party can argue about the validity of assumptions upon which a report is based but actual evidence used as the basis for an expert opinion is not subject to those same challenges.
No two cases are the same and what, if any, expert is required will depend upon the circumstances. It is all part of the proper consideration and preparation of one’s case; something that can make a huge difference to the outcome.