If you don’t follow the rules, the evidence may be inadmissible

Expert witness testimony is often a necessary and critical part of a litigation strategy. Experts can offer testimony to address specific questions or facts that are central to liability issues. Our expert reports have been used to give an opinion in a wide range of cases such as financial fraud, the value of a business, quantification of loss and damages, loss of profits and solvency of a company, to name a few.

Because expert witness testimony can be such an important factor it is essential that the right expert is engaged and the proper process is followed. Once the decision is made to use an expert, with few exceptions, it should be done as early as possible. Engaging an expert early can assist in determining if the value of the case is enough to make it worth litigating or the potential settlement value. Expert advice can also be valuable in the discovery process to ensure the required information is requested.

Each court has applicable rules for engaging an expert, for example in the Supreme Court of Victoria, the rules for expert evidence and expert witnesses, fall under the Supreme Court (General Civil Procedure) Rules 2005, and in particular Order 44 (Expert Evidence) of those rules. It is essential that both the instructing solicitor and the expert follow the applicable rules to ensure the report and or testimony is admissible in court.

It is also important to note that an expert is not an advocate for the party, so they must remain neutral and independent.

Depending on the court, an expert report needs to include specific elements. For example, some of the requirements contained in Rule 44.03 of the Supreme Court (General Civil Procedure) Rules 2005 include:

• An acknowledgement that the expert has read the expert witness code of conduct (Form 44A of the Supreme Court (General Civil Procedure) Rules 2005) and agrees to be bound by it.
• The qualifications of the expert.
• The facts, matter and assumptions on which the opinion is based.
• Any literature or materials used in support of the opinion.
• Any examinations, calculations, photographs, tests or other investigations which the expert relied upon.
• The expert’s opinion.
• The name and address of the expert.

Failure to comply with the rules will almost certainly result in the report being inadmissible in Court.

Once completed, a copy of the expert’s report and any supporting documents must be provided to the Court and to the other party. It is likely that the other party will also provide a report from an expert whose opinion may differ from that of the expert engaged by you.

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 when 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 and ultimately achieve the best results.