WHEN INSTRUCTING expert witnesses solicitors have to draw a fine line between ensuring the expert’s evidence is coherent and admissible in court and being careful not to compromise their independence, says a NSW barrister.
Jonathan Simpkins SC says lawyers regularly face the “conundrum” of how much they should be involved in the writing of an expert witness report.
“Given the importance of experts being independent … the profession likes to steer clear of getting involved in experts’ reports, but it does create problems if you do not become actively involved,” he told a conference last week called Commercial Litigation organised by Chilli Marketing Solutions.
He says the difficulty usually occurs when an expert witness is inexperienced with court requirements.
Simpkins says courts have in fact encouraged lawyers to be more “actively involved” in the “form” of expert reports to ensure they are admissible as evidence. This includes ensuring the report acknowledges that the expert has read and adhered to the expert witness code of conduct relevant to the court and has detailed the assumptions upon which their argument is based.
Lawyers should be involved in the writing of reports by experts; not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.”
Conferences entitled Commercial Litigation, organised by Chilli Marketing, will be held in upcoming weeks in both Brisbane and Melbourne.