Is your Expert Clean or Dirty?
Changes to the procedural rules and laws concerning the preparation of expert evidence has been quite dynamic in recent years with the inclusion of specific rules concerning the content of expert reports, the introduction of codes of conduct in some states and privilege in respect of draft reports being abrogated.
As discussed in my September article on “Engaging an expert witness”, knowing the applicable rules and adhering to them is a very important part of successfully engaging an expert. However, another critical success factor comes at the very beginning—the moment you think you may need an expert. At this point it is recommended you talk to an expert and discuss your potential requirements as this will enable you to understand the process and the timeframes to ultimately achieve the best results.
What is required from experts can change over the course of a matter. For example, during the initial stages an expert may be required to assist in the calculation of loss, then if proceedings commence, an independent expert may be required to give evidence in court. Where one expert is engaged as an advisor and a second independent expert is engaged to provide evidence in court: these experts are colloquially referred to as ‘clean’ and ‘dirty’ experts. That is, the ‘clean’ expert is engaged to act as the independent expert and their paramount duty is to the court; not the party that engaged them. In contrast, the advisor is referred to as a ‘dirty’ expert as they are not independent, there is no duty to the court and they act solely for the litigant.
The use of both a ‘clean’ and a ‘dirty’ expert can provide several benefits. Most importantly by using two experts the clean expert maintains independence and the risk of the report being inadmissible is significantly reduced. In contrast, the dirty expert acts as a litigation support consultant and it can be argued that privilege applies to the dirty expert. Given the costs associated with engaging experts the obvious question to be answered is, can the same person be engaged as both independent expert (clean) and advisor (dirty)? The answer is simple—it depends!
On the surface it makes sense as the advisor is familiar with the facts and although it would be more cost effective, it is risky. It has been suggested that as long as the expert and the legal advisors understand and recognise the difference between the two roles and keep them separate, it may be acceptable. However, from a practical perspective, how an expert separates acting as an advisor to the client and then ‘change hats’ to acting as an independent expert to the court is likely to pose some difficulties.
While it may be cost effective to engage the same person, consideration should also be given to the admissibility of the report as independence may be successfully challenged. Also, the expert may be accused of bias and less weight may be given to the report. Finally, there is a risk that privilege (that applies to the advisor) may be waived once that person is appointed as an independent expert.
There is a fine line between briefing an expert, and seeking advice, that if crossed will turn a potential ‘clean’ expert ‘dirty’.