CALLS for reform of the way that litigants obtain and present expert evidence are gathering momentum, with the NSW Supreme Court and experts themselves demanding an attitude change.
Sydney-based accounting damages expert Troy Peisley last week claimed lawyers continued to “shoot themselves in the foot” by maintaining ‘hired guns’ as experts. The sustained incidence, he added, of experts representing either side of a dispute forming opinions based on different information, must cease in the interests of speed and efficiency of the court process.
The damages calculus chapter of a case was the stage where lawyers, in many cases to their detriment, tend to shop for experts based on fee or favourable opinion.
“It’s surprising because you see litigants who seek $1 million in damages and they retain their regular accountant or a ‘paper expert’ to quantify the damages. It’s a specialised area and you can see very quickly if the accountant is a ‘hired gun’. They apply incorrect methodologies, they display bias by selectively excluding important information or they stray outside their area of expertise,” he said.
“It provides fertile ground for counsel to discredit them in cross examination and their opinion ends up carrying less weight than the paper it’s written on.”
Solicitors, Peisley continued, “over emphasise” the liability phase of litigation. It is, however, at the point of damages quantification where the quality of an expert’s opinion is most crucial.
“During a hearing, the judge is presented with two experts and invariably two completely different opinions. At the end of the day, the judge has to choose one expert’s opinion over another. It’s not like settlement negotiations; they don’t take the average of the two figures,” he said.
Peisley’s observations come hot on the heels of a provocative address from NSW Chief Justice Jim Spigelman last month, flagging greater use of a single — and possibly court-appointed — expert in future cases. The top judge’s comments sit comfortably with moves north of the Tweed, initiated by Spigelman’s Queensland counterpart Paul de Jersey, to eliminate biased experts from proceedings.
Although Spigelman spoke before an annual conference of forensic accountants, Peisley believed his views might have been more appropriately directed at lawyers in the first instance.
Instructing solicitors should, in as many cases as possible, liaise with their adversaries to establish a common pool of information from which experts on either side can form an opinion.
“I can’t see lawyers being too proactive about court-appointed experts, so a good progression would be for parties to attempt to achieve a consensus of information,” he said.
But such a system would require cooperation from both sides and Peisley, who is also a qualified lawyer, acknowledges it doesn’t sit comfortably with the adversarial traditions of litigation battles in Australia.
“It’s not about shifting the goal posts. It’s just a suggestion to assist the court, reduce costs for clients and stop experts from trotting off with different information,” he said.