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