Too many expert witnesses in common law courts find themselves in hot water, because they don’t understand what is expected of them.
If you want to be a reliable expert witness, here are the 13 simple duties you MUST be aware of:
1. Tell the truth, both in oral evidence and in written reports.
Do not knowingly mislead the court in any document, or you could be in serious trouble.
2. Be independent of the client.
You should not have any personal or financial interest in the outcome of the case.
3. Be independent of the legal team.
It is not your job to secure a particular result for your client.
4. Give evidence within your own expertise.
If an issue falls outside your own training or experience, you should suggest the client retain a different expert.
5. Assist the court to reach its own conclusion on the issues.
Your job is not to tell the court what the answer is, but to explain how the answer should be reached.
6. Research or ascertain the relevant facts.
Do not rely on the client or instructing solicitor without reading the underlying documents or carrying out such investigations as are required.
7. Educate the court as to the relevant specialist or technical knowledge.
Your opinion will be much more value to the court if backed up by the relevant textbooks or articles. Show them that it represents the accepted view of your profession.
8. Reach a reasoned and honestly held opinion on the relevant issues.
“The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.” (Supreme Court of Canada.)
9. Co-operate with the client and instructing legal team throughout the proceedings.
As the case develops, you may need to write follow-up reports or attend consultations.
10. Co-operate with the other legal teams when required.
You may be required to answer written questions on your report, or to provide some underlying factual information.
11. Co-operate with other expert witnesses when required.
You are expected to assist the court in ‘narrowing down’ the issues, by attending joint meetings, or preparing joint reports.
12. Communicate any changes of mind on the relevant issues.
If the facts change, or you receive other expert reports, your initial view of the case may change. This must be communicated to your legal team, and then to the other parties.
13. Comply with any directions of the court.
Depending on the case, the court may have specific requirements of you, such as: meetings; ‘Scott Schedules’; joint reports; review of discovery documents; or concurrent evidence (‘hot tubbing’).
For underlying authorities and other useful guidance for expert witnesses in any common law jurisdiction, see my book The Reliable Expert Witness, available here at just STG£19, EUR€22, CAN$31, AUS$34, including worldwide delivery.