The winds of change are blowing for how expert witnesses are used in our courts. Expert witnesses are engaged by parties who wish to use their evidence to establish facts that are the domain of specialist knowledge. Parties to most disputes have been free to engage whoever they want to provide this evidence provided they have the necessary expertise. But concern about the expense of litigation and the independence of expert witnesses has prompted Bob Debus, the New South Wales Attorney General, to ask the NSW Law Reform Commission to look at how experts and their evidence should be used in Court.
Expert witnesses are generally men and women who have done many years of study and have achieved a seniority based on experience. Access to that level of expertise is never cheap. Typically, they have to understand the issues in the case relevant to the questions they have been asked to comment on and prepare a report setting out their views. They may have to give evidence before a court. This may take several hours or days.
Often parties use several expert witnesses. In complex cases the parties may use witnesses from interstate or overseas. Unsurprisingly, the fees charged by expert witnesses are often one of the biggest components of parties' legal fees.
The NSW Supreme Court introduced reforms into this area many years ago by limiting parties to one expert for each area of expertise. Previously parties had tried to lend weight to their case by serving reports from several experts on the same issue who had the same expertise and who arrived at the same conclusions. This ludicrously expensive process favoured litigants with the deepest pockets and added considerably to the length of hearings. While banned in the NSW Supreme Court, this wasteful process is still allowed in some courts.
Concern is also often expressed at whether or not expert witnesses are genuinely independent of those who have retained them to give evidence. Expert witnesses are frequently seen as guns for hire whose evidence will favour the party who engages them. In the personal injury field, for example, there is a clear demarcation between doctors whose sympathies are perceived to lie with claimants and those who are more likely to be engaged by defendants. It is both bizarre and disturbing to read reports from medical experts who have looked at the same X-rays and analysed the same clinical presentation and come to opposing conclusions.
Many expert witnesses are professional witnesses whose primary work is not in their area of expertise but in giving evidence about it. Some of these professionals are prepared to take cases where they only get paid if the client wins: a "no win, no fee" engagement. This assists them in getting work and also allows some for whom the justice system would be out of reach to afford their services. It also means, however, that they could be perceived to have a vested interest in the result: they may slant their evidence to assist their client rather than giving a truthful assessment of the issues they have been asked to comment on.
The NSW Supreme Court has tried to overcome the problem of perceived bias in early 2000 by specifying that expert witnesses’ paramount duty is towards the Court and not to the person who retains them. Expert witnesses are now required to acknowledge that they are bound by that duty and all that it implies.
Another change introduced by the NSW Supreme Court in 2001 is a rule that allows the Court to require expert witnesses for different parties to get together and decide what they agree on and what they disagree on and why they disagree. This change has great potential. When opposing experts are able to discuss issues free from the adversarial pressures of the court they frequently find that they have been proceeding on the basis of different assumptions and are able to reach agreement or, at least, narrow the scope of their disagreement. If anything, this reform has not been used enough.
Despite these changes, disquiet about the expense and independence of expert witnesses has not gone away. Hence, the Law Reform Commission has been given the task of reviewing how expert evidence is best used. The Commission has issued an issues paper calling for submissions by 11 February 2005 with a view to publishing its report by the end of March 2005.
The Commission is looking at how to make the system of expert evidence more affordable and fairer. It is a timely opportunity for those with a vital interest in the judicial system such as insurers to have their say: recounting their experiences good and bad and their suggestions for improvement. Economies achieved on how expert evidence is dealt with by the courts could significantly lower the costs of claims that are litigated.
The Commission will look at issues such as:
- Who should engage experts - the parties or the courts?
- Should experts be accredited before their evidence can be relied on?
How to make experts more accountable to the courts?
- Whether "no win/no fee" agreements should be allowed?
- How to make the process more transparent?
- Whether more matters should be referred to experts for determination?
Insurers wishing to contain the cost of claims will want a restriction on the number of experts used and a narrowing of issues. Compulsory conferences between experts to identify the matters genuinely in issue could go a long way in appropriate cases to reducing the hearing time and focussing the parties on the real issues.
If the retaining of witnesses is made more transparent by requiring parties to place all instructions to experts in writing and to serve all a copy of those instructions when the reports are served will at least allow parties to understand all the assumptions on which reports are based.
However, it is questionable whether some of the proposals being considered will lower the cost of litigation. If, for example, court appointed experts are appointed, parties will often want to retain their own experts so that they can understand the relevant area and be in a position to dispute any report put out by the court appointed expert.
The Commission has a delicate task of balancing issues of access to justice, allowing parties the right to obtain and to present their own cases with the need to contain costs. Insurers, intent on reducing the cost of claims, should have a keen interest in the work of the Commission. Hopefully, the days of expert witnesses as guns for hire are numbered. Robert Pelletier is a Partner of Toomey Pegg Drevikovsky Lawyers, based in Sydney.