Part 1: Instructing Experts – Help us help you!
New Expert Evidence Guidelines – Our Four Part Series
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January 29, 2018
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Series: Intro | Part 2 | Part 3 | Part 4
“Hired gun”, “inappropriate communications”, “contamination” and "hot tubs" are just some of the terms you'll find in the Federal Court of Australia's (FCA) greatly expanded expert evidence practice note (GPN-EXPT) released in late 2016.
So what do these changes mean for you? In a series of four bite-sized parts, we explore how you can get the best out of GPN-EXPT. Here in Part 1, we explore the new guidelines relating to the instruction of expert witnesses and how they can be used to your advantage.
Guideline 1
The Parties are expected to consider whether a common expert is appropriate. s6.1(b) of GPN-EXPT
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What This Means for You
We have recently seen a significant increase in the use of a “jointly appointed” expert. Whilst it will most surely reduce the overall cost associated with expert evidence, there is necessarily an increase in the upfront burden on you as both parties must agree on the instructions, documents, facts and assumptions to be provided to the common expert. Furthermore, it may result in the need for each party to appoint a ‘consulting expert’ to assist with this process, which we address further in Part 4.
Guideline 2
It will often be desirable, before any expert is retained, for the parties to attempt to agree on the question or questions proposed to be the subject of the expert evidence as well as the relevant facts and assumptions. s6.2 of GPN-EXPT
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What This Means for You
In our experience, it would often be difficult to agree on the precise questions before any expert is retained. It should be possible to agree on the broad categories for which expert evidence is required. If you are required to agree on questions, facts and assumptions, it may be advantageous to engage a ‘consulting expert’ to assist (more on this below).
Guideline 3
Questions or assumption should be provided in an unbiased manner and in such a way that the expert is not confined to addressing selective, irrelevant or immaterial issues. s3.4 of GPN-EXPT
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What This Means for You
In practice, the instructing parties seek expert opinions in relation to specific points of claim or facts of the case. Therefore, the questions asked of the expert would inherently be, to a degree, “one-sided”. The experts’ duty to assist the court may be compromised if facts are withheld, or assumptions provided to them limit their ability to reach an unbiased opinion. When instructing your experts, make sure to provide them with the “whole picture”. Once again, historically a ‘consulting expert’ could be engaged to assist with providing instructions to independent experts on complex matters to ensure that they are provided with complete and relevant information.
Read more of our commentary on the FCA’s new expert evidence guidelines:
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Published
January 29, 2018
Key Contacts
Senior Managing Director, Head of Australia Forensic & Litigation Consulting