The Mock Trial

Afternoon All, 

today we will be examining the Mock Trial and the issues relating to an expert witness and their ability to give evidence.

Writing and presenting the expert report as an expert witness is not the only preparation needed. It isn’t acceptable to just turn up to court on the day and answer the counsel’s questions. The following video explains why preparation is key to presenting evidence:

A witness must be prepared before they enter a courtroom in order to provide professional and effective evidence. Being prepared instils confidence in not only the jury but also self-confidence. An expert witness but also adhere to important rules or procedure and evidence prescribed by both statutes and the courts to avoid any issues or misunderstandings in the trial. As an expert witnesses they should understand what will happen in their trial proceedings and what they should be aware of when presenting their evidence (Rahman, 2016). Such things include:

• Direct examination

• Cross examination

• "Yes or No" questions

• "I Don't Know" answers

• Getting cut off

• Keeping emotions in check

• Demeanour

• Dress

• Demonstrations 

In light of the Mock Trial that was conducted in the Governance, Fraud and Investigation class there are many ways that one should prepare to give expert evidence. There were many ways in which students could have improved their evidence giving skills such as using formal language to answer questions and talking to the judge, ensuring a thorough understanding of the report, and only providing and answering asked questions honestly.  

Giving expert evidence can be very difficult, and there are certain problems that an expert witness may face. Expert evidence has been identified as one of the main sources of expense, complexity and civil proceedings. Many times courts appoint multiple experts in jurisdictions to give evidence where quantity rather than quality of opinion has often been the norm (Wood, 2001).

Generally, the most common criticism of expert witnesses is that they are overly partisan and fail to provide the court with a neutral or independent opinion. This can often happen when the expert report contain bias or little or no facts. As evident in the Mock Trial by examining the reports, it can be noted that there were many opinions not based on facts and large amounts of bias favouring both the prosecution and defence.

Based on my experience of the Mock Trial, it was hard to only answer the questions asked. When giving evidence in a legal trial, you want to be able to provide sufficient evidence however when asked a particular question you want to be able to back up your answer. Instead of only answering the question you try to justify, which sometimes causes mistakes that find you in a hard spot which leads to more questions that you cannot answer.  

Overall, the experience of the Mock Trial has shone light on the problems and criticisms facing an expert witness. Identifying ways in which you can prepare to provide professional and unbiased evidence is crucial to a legal proceeding, this should also be accompanied by identifying the ways you shouldn’t approach evidence giving. 


References

Justice James Wood, 2001. Changing the roles of experts. Victorian Law Reform Commission - Civil Justice Review: Report. Retrieved Jun 10. from http://www.lawreform.vic.gov.au/sites/default/files/Chapter+7+-+Changing+the+Role+of+Experts.pdf

Mehjabeen Rahman, January 4, 2016. Preparing an Expert Witness for Trial Testimony – A Checklist. The Expert Institution. Retrieved Jun 10. from https://www.theexpertinstitute.com/preparing-expert-witness-trial-testimony/

Rules of Expert Evidence

Good afternoon everyone,

It's time to take a look at what you need to know on how to give expert evidence!

The section 23.15 of the Federal Court Rules (2011) states that evidence of experts is to be given in the following ways:

If 2 or more parties to a proceeding intend to call experts to give opinion evidence about a similar question, any of those parties may apply to the Court for one or more of the following orders:

1. a) that the experts confer, either before or after writing their expert reports;
2. b) that the experts produce to the Court a document identifying where the expert opinions agree or differ;
3. c) that the expert’s evidence in chief be limited to the contents of the expert’s expert report;
4. d) that all factual evidence relevant to any expert’s opinions be adduced before the expert is called to give evidence;

The term ‘Hot Tub’ also known as concurrent evidence is used to achieve a much more satisfactory experience of expert evidence for all those involved (Gray, 2011). The experts are able to give their opinions free from constraints of adversarial process and not limited to questions from counsel. This enables them to present their views without distortion or influence (Judicial Commission, 2016). Conferring between the expert witnesses also allows for any issues between the experts to be resolved and ensures the ability for counsel to focus and narrow the need for cross-examination (Rares, 2013).

Giving evidence in court helps the court on specialist or technical matters that are within the witness’s expertise. It is a crucial part of any legal trial for the expert witness to follow any rules that the Federal Court has set. These following suggestions would be preferential for an expert giving evidence (GMC, 2016):

•       Understand exactly what questions you are being asked to answer

•       Give expert testimony and opinions about issues that are within your professional competence or about which you have relevant knowledge

•       Give an objective unbiased opinion and be able to state the facts or assumptions on which it is based

•       Respect the skills and contributions of other professionals giving expert evidence, and not allow their behavior to affect your professional opinion

References

Steven Rares, 12 October 2013. How Concurrent Expert Evidence Aids Understanding Issues. Federal Court of Australia. Retrieved Jun. 10 2016 from http://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/rares-j-20131012

Jeff Gray, 19 April 2011. Why judges like 'hot-tubbing'. The Globe and Mail. Retrieved Jun. 10 from http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/why-judges-like-hot-tubbing/article577733/

General Medical Council, 2016. Giving evidence as an expert witness. Retrieved Jun. 10 from http://www.gmc-uk.org/guidance/ethical_guidance/21193.asp

Judicial Commission of New South Wales, 2016. Concurrent Evidence. Retrieved Jun. 10 from http://www.judcom.nsw.gov.au/publications/benchbks/civil/concurrent_evidence.html