EXPERT EVIDENCEEXPERT EVIDENCE

THE DECISION MAKER’S THE DECISION MAKER’S PERSPECTIVE AND HOW TO PERSPECTIVE AND HOW TO

IMPRESS THE JUDGEIMPRESS THE JUDGE

PurposePurpose

To explain, for the prospective medical To explain, for the prospective medical and allied health expert witness, his/her and allied health expert witness, his/her role and the framework in which the role and the framework in which the evidence is proffered. evidence is proffered.

ScopeScope

PrinciplesPrinciples Legal frameworkLegal framework Role of the expertRole of the expert 5 Rules5 Rules Problem areasProblem areas ReportsReports Medical confidence/immunityMedical confidence/immunity

PrinciplesPrinciples

““Expert witnesses, however skilled or imminent, can give Expert witnesses, however skilled or imminent, can give no more than evidence. They cannot usurp the functions no more than evidence. They cannot usurp the functions

of the jury or judge sitting as a jury, any more than a of the jury or judge sitting as a jury, any more than a technical assessor can substitute his advice for the technical assessor can substitute his advice for the

judgment of the court … Their duty is to furnish the judge judgment of the court … Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the or jury to form their own independent judgment by the

application of these criteria to the facts proved in application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole important factor) for consideration along with the whole

of the evidence in the case.”of the evidence in the case.”

PrinciplesPrinciples

Why courts are traditionally concerned Why courts are traditionally concerned about expert evidenceabout expert evidence

Jurors may not comprehend complex, Jurors may not comprehend complex, conflicting expert evidence sufficiently well conflicting expert evidence sufficiently well to evaluate it effectively;to evaluate it effectively;

Jurors may be overborne by the Jurors may be overborne by the articulateness and impressiveness of expert articulateness and impressiveness of expert witnesses;witnesses;

Courts may be deceived by the undisclosed Courts may be deceived by the undisclosed partisanship unrepresentedness and even partisanship unrepresentedness and even dishonesty of expert witnesses;dishonesty of expert witnesses;

PrinciplesPrinciples

Expert evidence may unduly prolong litigation Expert evidence may unduly prolong litigation without significantly assisting the trier of fact, without significantly assisting the trier of fact, be it judge or jury;be it judge or jury;

The role of juries may be usurped by The role of juries may be usurped by evidence which trespasses into their domain; evidence which trespasses into their domain; andand

Cross examination may not act as an Cross examination may not act as an effective check and balance to these risks.effective check and balance to these risks.

Legal FrameworkLegal Framework

Governed by the general law of evidenceGoverned by the general law of evidence Principles have evolved from common lawPrinciples have evolved from common law Uniform evidence code Uniform evidence code Section 79 of the Section 79 of the Evidence ActEvidence Act

Role of the expertRole of the expert

Arnotts Ltd v TPCArnotts Ltd v TPC (1990) 24 FCR 313 (1990) 24 FCR 313 ““Experts constantly generalise from Experts constantly generalise from

experience, calling in aid all their training and experience, calling in aid all their training and professional experience in expressing an professional experience in expressing an opinion upon a matter within their field.opinion upon a matter within their field.””

““In many cases the question whether that fact In many cases the question whether that fact exits can be answered only by expertsexits can be answered only by experts.”.”

Who is an expert?Who is an expert?

““AA person who has specialised knowledge person who has specialised knowledge based on the person’s training, study or based on the person’s training, study or experience.experience.” ”

Five rulesFive rules

1.1. Expertise ruleExpertise rule

2.2. Area of expertise ruleArea of expertise rule

3.3. Common knowledge ruleCommon knowledge rule

4.4. Basis ruleBasis rule

5.5. Ultimate issue ruleUltimate issue rule

Expertise ruleExpertise rule Section 79 permits an exemption to the opinion rule to Section 79 permits an exemption to the opinion rule to

“persons” who have specialised knowledge based on a “persons” who have specialised knowledge based on a person’s training study or experience.person’s training study or experience.

R v Perry (No.4)R v Perry (No.4) (1981) 28 SASR 119 (1981) 28 SASR 119 Opinion evidence from a psychiatrist - diagnosis of a mental Opinion evidence from a psychiatrist - diagnosis of a mental

conditioncondition Pathologist - cause of deathPathologist - cause of death Contrast with: evidence from an expert analytical chemistContrast with: evidence from an expert analytical chemist

• Little independent judgment required to measure the level of arsenic Little independent judgment required to measure the level of arsenic in blood - merely a statement of factin blood - merely a statement of fact

Witness not acting as an expert and would not be a “person” in Witness not acting as an expert and would not be a “person” in the context of s.79the context of s.79

Ask yourself:Ask yourself:

Does this matter truly require the Does this matter truly require the application of personal expert application of personal expert

judgment or is the ‘expert’ merely a judgment or is the ‘expert’ merely a conduit through whom other facts are conduit through whom other facts are

being relayed? being relayed?

Common knowledge ruleCommon knowledge rule

Experts’ evidence is not “Experts’ evidence is not “admissible on a admissible on a question within the capacity of lay question within the capacity of lay witnesseswitnesses”: ”: R v DARR v DAR (Unrpt NSWCA 8 (Unrpt NSWCA 8 Nov 95) Nov 95) Common problem – especially for psychiatryCommon problem – especially for psychiatry

Expert evidence is not admissible to prove Expert evidence is not admissible to prove those matters that are acceptable by those matters that are acceptable by current community standardscurrent community standards

Common knowledge ruleCommon knowledge rule

““If the subject matter is one on which the If the subject matter is one on which the average man is capable of forming an average man is capable of forming an

opinion unaided by expert evidence, then opinion unaided by expert evidence, then the expert evidence is inadmissible. In the the expert evidence is inadmissible. In the area of common knowledge there are no area of common knowledge there are no

degrees of expertise.degrees of expertise.””

Area of expertise ruleArea of expertise rule

Sect. 79 - specialised knowledge “Sect. 79 - specialised knowledge “based on based on a person’s training, study or experience”a person’s training, study or experience”

2 questions:2 questions: Whether the subject matter of opinion falls within the class of Whether the subject matter of opinion falls within the class of

subjects upon which expert testimony is permissiblesubjects upon which expert testimony is permissible• Whether a view can be expressed without knowledgeWhether a view can be expressed without knowledge

• Whether there is a body of knowledgeWhether there is a body of knowledge Whether the witness has acquired by study or experience Whether the witness has acquired by study or experience

sufficient knowledge of the subject to render his opinion of value in sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.resolving the issues before the court.

Basis ruleBasis rule

““An expert may give his opinion upon facts which are either An expert may give his opinion upon facts which are either admitted, or proved by himself, or other witnesses in his admitted, or proved by himself, or other witnesses in his

hearing, at the trial, or are matters of common hearing, at the trial, or are matters of common knowledge; as well as upon an hypothesis based knowledge; as well as upon an hypothesis based

thereon. An expert’s opinion is therefore inadmissible as thereon. An expert’s opinion is therefore inadmissible as to material which is not before the court, or which may to material which is not before the court, or which may

have merely been reported to him by hearsay.”have merely been reported to him by hearsay.”

Basis ruleBasis rule

How strictly ought this rule apply?How strictly ought this rule apply? More latitude in civil proceedingsMore latitude in civil proceedings Expert’s opinion worthless unless founded upon a Expert’s opinion worthless unless founded upon a

substratum of facts proved by the evidence in the substratum of facts proved by the evidence in the casecase

Expert’s function is to express an opinion based Expert’s function is to express an opinion based on assumed facts, not to express a view on on assumed facts, not to express a view on whether the assumptions are justifiedwhether the assumptions are justified

Ultimate issue ruleUltimate issue rule

Object: to ensure that the jury is not overwhelmed by an Object: to ensure that the jury is not overwhelmed by an expert’s expression of opinion which assumes a certain expert’s expression of opinion which assumes a certain set of facts which is in contention or does not, of itself, set of facts which is in contention or does not, of itself, clearly enough disclose its basis. clearly enough disclose its basis.

Becoming clouded with the expansion of scientific Becoming clouded with the expansion of scientific knowledge knowledge

Common issuesCommon issues Identification of recognised Identification of recognised

problem areas;problem areas; An appreciation of how decision An appreciation of how decision

makers make decisions;makers make decisions; An appreciation of the expert’s An appreciation of the expert’s

need to be objective;need to be objective; The significance of the report The significance of the report

format; andformat; and The importance of presentation The importance of presentation

before a Court or Tribunal before a Court or Tribunal

Problem areasProblem areas

BiasBias ComprehensionComprehension Exceeding parametersExceeding parameters Non-responsive answeringNon-responsive answering Failure to prove the basis of opinionFailure to prove the basis of opinion

BiasBias

Risk of becoming too close to clientRisk of becoming too close to client Objective opinion vs commercial reality?Objective opinion vs commercial reality? Remember – duty to the courtRemember – duty to the court

ComprehensionComprehension

Use of jargonUse of jargon Who are the parties?Who are the parties?

Decision maker(s)Decision maker(s) LawyersLawyers ClientsClients

Try to remain consistentTry to remain consistent Should you use layman’s terms?Should you use layman’s terms?

Ultimate objective is to clearly communicate in Ultimate objective is to clearly communicate in

plain terms the expert’s message to the courtplain terms the expert’s message to the court

Exceeding parametersExceeding parameters

The days of “all purpose” expert are The days of “all purpose” expert are behind us behind us Medicine – many specialist fieldsMedicine – many specialist fields

Hard to identifyHard to identify Avoid being a ‘librarian’Avoid being a ‘librarian’

Non-responsive answeringNon-responsive answering

Factors:Factors: Lack of objectivityLack of objectivity Suspicion of the intent Suspicion of the intent

of the cross examinerof the cross examiner EgoEgo Fear of the adversarial Fear of the adversarial

systemsystem

Non-responsive answeringNon-responsive answering

Purpose of cross examination is to test the Purpose of cross examination is to test the evidence evidence

May involve raising alternate hypothesesMay involve raising alternate hypotheses An expert is not an advocateAn expert is not an advocate

If you are being shut down – If you are being shut down – say that you would like to add say that you would like to add

to the answer!to the answer!

Failure to prove basisFailure to prove basis

Not uncommon for an expert to be inadequately Not uncommon for an expert to be inadequately briefedbriefed

Seek out further materialSeek out further material

If you make an assumption – say soIf you make an assumption – say so

The decision makersThe decision makers

Might be:Might be: Judicial officersJudicial officers ArbitratorsArbitrators Tribunal membersTribunal members AdjudicatorsAdjudicators

The higher up you go – usually the less The higher up you go – usually the less technical knowledge you will findtechnical knowledge you will find

The decision makersThe decision makers

Safe to presume that a decision maker will Safe to presume that a decision maker will not have an expert’s knowledge or not have an expert’s knowledge or experience on the subject matterexperience on the subject matter

Judges will use cross Judges will use cross examination to tease out examination to tease out what effect a variation of what effect a variation of facts would have upon the facts would have upon the expert’s opinionexpert’s opinion

The decision makersThe decision makers

Be prepared for the decision maker to Be prepared for the decision maker to seek multiple expressions of opinion seek multiple expressions of opinion

Remember – your evidence is just one Remember – your evidence is just one part of the puzzlepart of the puzzle

How decision makers process the How decision makers process the information produced by evidence:information produced by evidence:

Findings of factFindings of fact Apply the expert knowledgeApply the expert knowledge Consider alternativesConsider alternatives Assess the facts against the expert’s field Assess the facts against the expert’s field

of expertiseof expertise

The reportThe report

Essential partEssential part Rules - Federal Court Rule 23.13 Rules - Federal Court Rule 23.13 Should contain all material referred to as Should contain all material referred to as

an attachment or have a bibliography an attachment or have a bibliography

Letter of instructionLetter of instruction

May include not only statements of fact & May include not only statements of fact & documentsdocuments

Must appreciate the nature and ambit of the Must appreciate the nature and ambit of the letter and supporting documentsletter and supporting documents

These are discoverable and may be closely These are discoverable and may be closely scrutinisedscrutinised

Basis for disputeBasis for dispute

The role of the expert is to assist the Court The role of the expert is to assist the Court by providing an opinion or series of by providing an opinion or series of opinions based upon the facts as opinions based upon the facts as presented presented

It is It is NOTNOT to draw conclusions as to the to draw conclusions as to the truthfulness or accuracy of an opposing truthfulness or accuracy of an opposing set of instructions set of instructions

Basis for disputeBasis for dispute

However – by looking at alternative However – by looking at alternative hypotheses, may be able to suggest a hypotheses, may be able to suggest a basis for implausibility basis for implausibility

Sometimes facts will not be available – Sometimes facts will not be available – may have to rely upon assumptions and may have to rely upon assumptions and presumptionspresumptions

Content of reportContent of report

Helpful to draft report using neutral Helpful to draft report using neutral language language Permits expression of an alternative view Permits expression of an alternative view

based upon an alternative hypothesisbased upon an alternative hypothesis Desirable that a report address all Desirable that a report address all

hypotheses which are advanced hypotheses which are advanced

Content of reportContent of report

Genuine differences of opinionGenuine differences of opinion Part of the expert’s report which addresses Part of the expert’s report which addresses

specific training and experience becomes specific training and experience becomes critical. critical.

Assistance from lawyersAssistance from lawyers Report should be “the independent product of Report should be “the independent product of

the expert” the expert” Make sure that the opinion is your opinion!Make sure that the opinion is your opinion!

Curriculum vitaeCurriculum vitae

Should address:Should address: basic qualifications basic qualifications additional courses and programs of studyadditional courses and programs of study papers and presentationspapers and presentations other training other training

Should be constantly updated Should be constantly updated Updated version should be available at trialUpdated version should be available at trial

Draft reportsDraft reports

QLD – Draft reports no longer privelegedQLD – Draft reports no longer priveleged

When writing drafts - better not to express When writing drafts - better not to express any view but rather require the provision of any view but rather require the provision of further material or the making of further further material or the making of further enquiries enquiries

Draft reportsDraft reports

Remember the audience!Remember the audience! HeadingsHeadings StructureStructure Short sentencesShort sentences Plain languagePlain language Glossary?Glossary? Explain terms Explain terms Executive summaryExecutive summary

Medical confidence/immunityMedical confidence/immunity

Evidence of an expert is not privileged and Evidence of an expert is not privileged and it is not protected from scrutiny by the it is not protected from scrutiny by the other party other party

No strict right to refuse disclosure No strict right to refuse disclosure No advice or litigation privilege will No advice or litigation privilege will

generally arise generally arise

Medical confidence/immunityMedical confidence/immunity

Expert is free to speak to people Expert is free to speak to people representing either side of the recordrepresenting either side of the record

A failure to reasonably engage the other A failure to reasonably engage the other side may leave the expert open to attackside may leave the expert open to attack

Evidence is exempt from professional Evidence is exempt from professional negligence negligence

ConclusionConclusion

Duty and responsibilities are taxingDuty and responsibilities are taxing

Expert witnesses should understand the Expert witnesses should understand the basic legal framework basic legal framework

This will better inform the report produced This will better inform the report produced

ConclusionConclusion

A deliberately considered and clearly A deliberately considered and clearly expressed report is invaluableexpressed report is invaluable

The report prepares the expert for the The report prepares the expert for the ultimate trial - cross examinationultimate trial - cross examination