Proctor : November 2018
22 PROCTOR | November 2018 Expert evidence This article explores issues relating to expert evidence in civil proceedings. 1. Prove the facts on which the opinion is based An expert is a witness who expresses an opinion about something. In other words, the expert takes into account certain information which is provided to them and then draws a conclusion based on that information. An expert is not (usually) a witness who is able to give direct evidence in order to establish the truth of the information so provided. That direct evidence must be given in another way which is itself admissible. For example, assume that you wish to have an expert provide a report as to the quantum of loss suffered by your client as a consequence of particular conduct of another party (which your client contends is unlawful). You would brief the expert with documents relevant to that calculation and, in addition, your letter of instructions to the expert would set out facts which you ask the expert to assume are correct. Subject to any agreement with the other parties to the contrary, you cannot then proceed on the basis that, because the documents are annexed to the expert report, they are admitted into evidence and do not need to be proven. Rather, because the expert’s opinions in the report are based upon the documents (if that is the case), you will need to take steps to cause those documents to be admitted into evidence. Of course, the documents must be relevant and there must be a proper basis to seek to tender them. Similarly, the facts provided to the expert (and on which the expert’s opinion is based) must be established by other evidence at trial, unless a particular fact is not in dispute (such as, for example, it is a fact which is admitted on the pleadings). This means that the facts themselves must, as a starting point, be relevant. This has the consequence that care must be taken when briefing an expert with facts and documents to ensure that there is an ability to prove those facts and documents at trial. If not, then the expert report may be inadmissible or, if it is admitted, the trial judge may decide not to accept the opinions expressed in it. 2. Preliminary brief Depending on the nature of the matter, it may be prudent to brief the proposed expert with relevant documents and a basic statement of facts (both of which you know will be able to be admitted into evidence at trial) and, by way of oral instructions, ask the expert to meet in conference or confer by telephone to discuss the following: a. whether the expert has appropriate expertise b. the answers which the expert would give to particular questions if those questions were to be the subject of an expert report c. the formulation of the questions which the expert should be asked to address, having regard to the issues in the case d. any further information which the expert requires. Such a discussion will assist you in forming a view as to whether to brief this particular expert at all and, if so, the content of any letter of instructions and brief given to the expert. 3. Letter of instructions to the expert To brief an expert properly, a letter of instructions should be prepared and provided to the expert by you – not by your client. As to the last point, the retention of the expert by you assists in maintaining the independence of the expert. An expert who is approached and retained by a client may start to feel sympathy for the client’s cause and this may affect (or be perceived to affect) their impartiality. As to providing a letter of instructions, rather than an oral brief, a letter enables the expert to be provided with a precise statement of any facts, and list of any documents, on which the report is to be based and what the expert is being asked to do. This avoids miscommunication or a misunderstanding between you and the expert as to these matters. A letter also provides transparency to the trial judge and the other parties as to these matters. Finally, a letter causes you to reflect on the facts and documents which your client will need to establish by admissible evidence at trial. 4. Content of letter of instructions A letter of instructions to an expert should do the following (at least): a. Identify the parties to the dispute to enable the expert to confirm their independence by reference to those parties. b. Identify your client. c. Identify the nature of the dispute in a neutral and summary way, without developing arguments as to why you client should succeed in the dispute. d. Identify the question which the expert is being asked to answer. When framing the question, ensure that it is a question which is relevant to the facts in issue in the proceeding (for which you will need to have regard to the pleadings). e. Ask the expert to confirm their expertise to answer that question and to exhibit a curriculum vitae to establish their expertise. f. Identify the facts relevant to the opinion sought from the expert. These facts should be stated in a neutral manner and in the same terms as the pleading if possible. These facts must be facts which are common ground between the parties on the pleadings or which are capable of being proven by admissible evidence at trial. g. Identify the documents provided with the letter in a list (and then provide those documents as annexures to the letter). These documents should be documents able to be tendered at trial. The list should not usually include the pleadings because that will encourage the expert to consider the dispute as a whole, including issues not relevant to their opinion. h. Emphasise the need for the expert to explain the reasons for any conclusion reached. It is a common problem that experts fail to expose their reasoning in their reports. i. Ask that the expert identify all facts and documents in the report on which the expert has relied to express any opinion. This may be a subset of what was provided to the expert by you or it may be all that was contained in or attached to the letter of instructions plus other information, such as journal articles or documents provided by you previously. j. A copy of the relevant court rules with which the expert must comply. A letter of instructions to an expert should not: a. Identify the arguments which your client intends to advance at trial. b. Contain any statements as to why you or your client contends that the other party is incorrect. c. Identify the conclusion which your client contends is the correct one.