GIVING EXPERT EVIDENCE - George Golvan QC

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1 BuildLaw - Issue No 9 March Introduction GIVING EXPERT EVIDENCE - George Golvan QC Probably the most famous piece of cross-examination of all time is the question asked by the famous English Barrister, Norman Birkett KC, who was cross-examining an expert engineer and fire assessor on the cause of a fire in a motor vehicle. His first question was: What is the coefficient of the expansion of brass? The expert witness was unable to answer what seemed to be a basic question for an expert fire engineer, as a result his credibility as a witness was destroyed. What are the lessons that comes from that case? The question was probably unfair, and incapable of being answered, because it depends upon the proportion of copper and zinc making up particular specimen of brass to which the question was supposed to relate; An expert should expect the possibility that an attack will be made upon the expert s credibility in the course of cross-examination, and that is part of the litigation game and has to be anticipated and dealt with; A confident expert would not have been panicked into an inappropriate answer, but should presumably should have said that he needed more information (i.e. the proportions of copper and zinc making up the specimen of brass being referred to) before he could answer, in which case the expert probably would have shown Birkett KC up; GEORGE GOLVAN QC AGeorge H. Golvan is a Queen s Counsel who holds degrees in law and jurisprudence from Monash University, Melbourne, and the degree of Juris Doctor (J.D.) from Arizona State University, (USA). Mr. Golvan practises in the areas of Building and Construction Law, Commercial Arbitration, Commercial Tenancy, Banking and Insurance, and General Commercial and Corporate Law. I have been asked in this paper to focus on the practical considerations that expert witnesses need to take into account in giving expert evidence, so I do not intend to spend time on Court Rules and Practice Notes. But there are, of course, a number of significant Rules of Court and Practice Notes in different jurisdictions that need to be read and understood before an expert witness prepares an expert report and gives expert evidence in that Court. For example, in the Supreme Court, I particularly refer to r 44 which is the Supreme Court Rule dedicated to expert evidence, and in particular r which identifies what needs to be contained in an expert s report. Also Form

2 BuildLaw - Issue No 9 March A which is the Expert Witness Code of Conduct. An expert is required to acknowledge that he has read the Code of Conduct and agrees to be bound by it as part of an admissible report. And I also refer to the Commercial Court Practice Note 1/2010 ( the Green Book ) para ( Expert Evidence ) Standard Joint Expert Orders (at p.52). Can I also recommend an excellent and practical text: The Accountant as an Expert Witness A Basic Guide to Forensic Accounting by Hoffman, Vinney, Cox and Cooper from CCH.. I have referred to this text with considerable assistance in preparing, this Paper. The problems Judges find with expert witnesses. AIJA Study: Bias and partiality. Judges are frequently concerned that an expert is partisan or biased. 35% of Judges thought that most serious problem with experts. Woolf Report in the UK proposed court appointed experts, and the various Court protocols and codes of conduct stressing that an expert is not an advocate for a party, and has an overriding duty to assist the Court impartially. Once you are perceived as an advocate, that threatens the credibility of all of your evidence. The problems Judges find with expert witnesses 1. Bias and partiality. 2. Problems with comprehension. 3. Going outside the experts area of expertise. 4. Failure to provide the bases of the expert opinion. 5. Non-responsive answers. Problems with comprehension. Good report writing and giving expert evidence are communication skills. You need to make certain that Judges and arbitrators understand your evidence and you need to give thought to ways of presenting your report and evidence in a manner which can be readily comprehended. Going outside the experts area of expertise. It is not the role of the expert to express opinions on matters which fall outside the experts area of expertise, but experts frequently do it. Failure to provide the bases of the expert opinion. It is one thing to provide conclusions, it is another to set out the facts and assumptions and reasoning process on which the conclusions are based. It is also important that having explained the bases of your opinions that your conclusions are conveniently summarized at the beginning or the end of your reports under the heading conclusions or summary. Non-responsive answers. One Judge remarked that the problem often occurs in cases where there is might class of egos. The Barrister thinks that he or she is an expert, and the expert thinks that he or she is an advocate!

3 BuildLaw - Issue No 9 March What are the factors that Judges found most persuasive about experts: The ability to present expert information comprehensively and with clarity. Absolutely the most important consideration. The appearance of impartiality. Educational credentials and qualifications. Prior experience in the field. Familiarity with the facts. Interestingly, witness appearance and publications, not that relevant. The conventions of Court: In relation to demeanour and confidence, it is important to know what to expect. Courts, for example, have established conventions that need to be understood. Breach of these conventions can have a severe impact: When the judge enters a Court people in the Court Room including expert witnesses waiting to give evidence conventionally bow in the direction of the judge. It is good manners to do that and not to be looking at your papers; The same occurs when the judge leaves the bench; When an oath is being administered it is appropriate to hold the Bible up in your right hand. You can choose to swear on the New Testament or the Old Testament or give an affirmation if you prefer. There is nothing wrong with that but know what you propose to do before you get into the witness box; Generally witnesses give their evidence standing, for some reason, it may be preferable to give your evidence sitting. Sometimes, the judge will ask whether you prefer to be seated. There is nothing wrong with being seated or saying that you prefer to stand. I generally think that witnesses generally perform better standing up. The witness usually takes into court his or her report/witness statement and file. I note however, that if you bring into a court a file you may be requested to produce any documents in the file including potentially privileged documents so take care as to what documents you bring into Court; If you wish to refer to some document or plan when being asked a question, it is usually appropriate to ask permission to do so. i.e. I am not able to answer that question without referring to my field notes, may I refer to my notes? Of course, reference to your notes will make those notes subject to production in crossexamination. You may refused permission to refer to notes and be required to exhaust your recollection; Examination in chief: Generally an expert witness upon being called to give evidence will be questioned by the barrister who represents the party for whom the expert has been called. This is called giving evidence in chief. Leading questions, which suggest the answer, are not permitted in examination in chief. The questions are usually for the purpose of establishing your expertise, which is usually contained in a written CV, and for tendering your report or expert witness statement or

4 BuildLaw - Issue No 9 March affidavit.. Sometimes you will be questioned about some of the crucial findings in your report, to explain and reinforce the conclusions arrived at. On other occasions, the judge will prohibit questions being asked in relation to matters contained in your report. That is an issue between counsel and the judge, not between you and the judge, but it is something which needs to be discussed with the barrister before you go into court. Cross Examination: You will then be subject to cross-examination by the opposing barrister, the purpose of which is to challenge or test your evidence by either challenging your expertise, challenging the underlying assumptions or bases upon which your opinion is based, or challenging your methodology. In cross-examination leading questions are permitted Good cross examiners will generally ask very tight questions which usually seek a yes or no answer; Remember, that although the barrister is asking the questions, the arrows have frequently been supplied by another expert engaged on behalf of the other party; Re-examintion: Following the completion of the cross-examination counsel for the party for whom you act will be given an opportunity to ask questions in reply, which is called re-examination, and which is intended strictly for the purpose of clarifying issues that may have been misunderstood in cross-examination or correcting any false impressions which may have been given during cross-examination, not for the purpose of re-stating your evidence or raising new matters that you might have omitted to give evidence about; In the course of both examination in chief and cross-examination you will frequently be asked questions by the presiding judge. It is important that once the judge commences to ask a question, stop speaking and to listen carefully to the question. Do not be afraid to seek clarification if the question is unclear. Respond in the direction of the judge and give a direct, simply honest, concise and clear answer. Then wait for the next question either from the judge or from Counsel. If the judge wants further clarification the judge will ask you; Don t look for approval of you answer your barrister or client. If you don t know the answer, or if you need further time to consider the question more carefully, say so; If you have not given evidence in court before, before your evidence go to a court and watch a witness give evidence. Become familiar with the court setting, where counsel sit, where the solicitors sit, where the witness box is. One thing you will probably notice is that most judges take detailed written notes of the evidence, even if there is a transcript, so speak slowly and clearly so that you are easily understood and the judge has no difficulty taking notes of your evidence. If a judge is taking detailed notes then calibrate your evidence to the judges note taking; Remember, we have an adversarial system, which is not based on a search for truth, but in arriving at a decision between the admissible evidence in competing cases. The system permits vigorous cross-examination of witnesses. That can often be frustrating for an expert witness, who may wish to give a detailed explanation to justify a particular opinion, but is restricted to answering the questions he/she is asked in examination in chief and cross examination, which may not necessarily be the right questions. But it must be appreciated that no-matter how much assistance you would like to offer the Court, your role is to answer the questions you have been asked. It is often frustrating and annoying, but that is the way our system operates.

5 BuildLaw - Issue No 9 March Preparation for being an expert witness Obviously, it is important to prepare by re-reading and reviewing your own report and//or witness statement and other reports and documents to which you refer so that you have familiarity with all documents and reports. If the report relates to a particular property, it is usually helpful to revisit the property to see if there have been any changes to the property that may be of relevance and review your field notes. There may be new facts and circumstances that come to light which impact upon the conclusions made in your original report and an up-to-date report should be provided and sent to your instructing solicitor for distribution. In addition, all calculations which may need to be updated, for example continuing loss of income calculations, if that is relevant, will need to be brought up-to-date. It is usual to have a conference with counsel before giving evidence. Sometimes you will be asked to assist counsel in the preparation of cross-examination of the expert witnesses on the other side. It is also important that counsel asks you the right questions in examination in chief. You need to have some idea of what questions your counsel proposes to ask you, and you are entitled to work with counsel to ensure that you are asked the right questions; Be well organised. Make sure that your documents are well ordered and you know where they are for easy reference, if you need to reference a document; It is important, that you not discuss your expert evidence in the company of other expert witnesses who may be giving supporting expert evidence in a common field. In a recent Supreme Court decision of Roads Corporation v. Love [2010] VSC 253 Vickery J, an expert witness agreed that he had attended a meeting with a party together with a number of other experts engaged by the party. The judge was critical of meetings between experts to be called by a party for the purpose of ensuring they adopt a common line. He noted that the essential independence of the witness is compromised and the witness approaches the role of the advocate for the person retaining him or her. There is nothing wrong with meeting with lawyers generally, to discuss the evidence that you will give, the cross-examination you may need to deal with. However, it is not appropriate to have meetings with lawyers for the purpose of tailoring your evidence to that of other expert witnesses, who it is proposed to call. Of course, there may be circumstances where the opinion of one expert depends upon information to be provided by others. There is nothing wrong, in that case, with the expert being provided with the opinion of another expert for the purpose of the expert providing a further opinion based upon matters contained in the first expert s evidence. For example, evidence about the value of a property may require reliance upon expert evidence from an expert surveyor, or geologist, if there is some issue about sub-surface conditions. Dealing with lawyers There is a significant question as to the extent to which lawyers engaging an expert witness are entitled to test or question the expert witness assumptions and

6 BuildLaw - Issue No 9 March Preparation for being an expert witness Obviously, it is important to prepare by re-reading and reviewing your own report and//or witness statement and other reports and documents to which you refer so that you have familiarity with all documents and reports. If the report relates to a particular property, it is usually helpful to revisit the property to see if there have been any changes to the property that may be of relevance and review your field notes. There may be new facts and circumstances that come to light which impact upon the conclusions made in your original report and an up-to-date report should be provided and sent to your instructing solicitor for distribution. In addition, all calculations which may need to be updated, for example continuing loss of income calculations, if that is relevant, will need to be brought up-to-date. It is usual to have a conference with counsel before giving evidence. Sometimes you will be asked to assist counsel in the preparation of cross-examination of the expert witnesses on the other side. It is also important that counsel asks you the right questions in examination in chief. You need to have some idea of what questions your counsel proposes to ask you, and you are entitled to work with counsel to ensure that you are asked the right questions; Be well organised. Make sure that your documents are well ordered and you know where they are for easy reference, if you need to reference a document; It is important, that you not discuss your expert evidence in the company of other expert witnesses who may be giving supporting expert evidence in a common field. In a recent Supreme Court decision of Roads Corporation v. Love [2010] VSC 253 Vickery J, an expert witness agreed that he had attended a meeting with a party together with a number of other experts engaged by the party. The judge was critical of meetings between experts to be called by a party for the purpose of ensuring they adopt a common line. He noted that the essential independence of the witness is compromised and the witness approaches the role of the advocate for the person retaining him or her. There is nothing wrong with meeting with lawyers generally, to discuss the evidence that you will give, the cross-examination you may need to deal with. However, it is not appropriate to have meetings with lawyers for the purpose of tailoring your evidence to that of other expert witnesses, who it is proposed to call. Of course, there may be circumstances where the opinion of one expert depends upon information to be provided by others. There is nothing wrong, in that case, with the expert being provided with the opinion of another expert for the purpose of the expert providing a further opinion based upon matters contained in the first expert s evidence. For example, evidence about the value of a property may require reliance upon expert evidence from an expert surveyor, or geologist, if there is some issue about sub-surface conditions. Dealing with lawyers There is a significant question as to the extent to which lawyers engaging an expert witness are entitled to test or question the expert witness assumptions and

7 BuildLaw - Issue No 9 March no matter how independent you feel, it is hard enough not to identify with your client s cause. Incidentally, courts regard experts giving accounting evidence as the least independent and the most difficult to understand. In a recent protocol issued by the UK Academy of Experts and Expert Witnesses Institute, the Academy advised that experts can accept instructions from solicitors on the form of their reports, whilst ensuring the content and opinion must be a matter for the expert alone. The protocol noted that a useful test for independence is that the expert would express the same opinion if given the same instructions by the opposing party. That is not a bad reflective test! How to deal with cross-examination Firstly, it does not do any harm to look and behave like an expert. Although courts have downgraded the role of demeanour, it does not do any harm if you turn up to Court wearing a conservative suit and tie and you behave in a patient and polite manner. Judges should be referred to as Your Honour, or in the case of an arbitration, arbitrators are usually referred to as Mr Arbitrator. Counsel, even those who have asked you difficult questions should be responded to politely and patiently. It is probably best to refer to the cross-examiner as Mr or Ms, so and so. It is useful to have some idea in advance as to what areas the opposing party s counsel is likely to cross-examine about. This is something that can be discussed in pre-conference with your own party s counsel. A mock cross-examination might also be useful. You will be much more relaxed and confident if you have some idea of the possible areas of cross-examination and also well prepared. Never forget, that it is the role of opposing counsel to seek to question your credibility or to probe the reliability of your expert opinion. You will never benefit by responding angrily or sarcastically to questions. The best approach is to listen carefully to the question. Make sure you understand the question, if not seek clarification. It is perfectly acceptable to ask for a question to be repeated. But asking for questions to be repeated too often undermines your credibility, as do frequent and extended pauses in giving answers. Then give the answer honestly, succinctly and to the best of your ability in a comprehensible fashion. When you have finished giving the answer to the question asked, stop and wait for the next question! One of the problems of an inexperienced witness is a tendency to over-elaborate and go beyond the question asked. Don t talk too much or try to be too clever! Do not answer part of a question, wait for the full question to be asked. If, for some reason, the question is objectionable or irrelevant your party s barrister may object to the question. That is a matter for the barrister not the expert. If there are concerns with the particular proposition that is put to you, then make known what those concerns are. There may be many occasions when the simple answers yes or no will be sufficient. If so, they are acceptable answers. If you need to give further explanation, there is nothing wrong with referring to a document or a plan, if that assists you explanation. Do not give hasty unconsidered opinions that you will later regret. Lawyers will sometime seek to trap you into giving unsound admissions. If you do not follow the question, or if you find it confusing, say so. What you need to to pay attention to are not the vigorous and assertive questions, but the friendly and clever ones.

8 BuildLaw - Issue No 9 March It has also been pointed out, that matters of expertise often do require a more detailed explanation, particularly for those in court who do not share the same expertise. Therefore appropriate and comprehensible explanation should not be confused with over-elaboration, but remember, answer the question you have been asked. If your opinion is under attack do not be afraid to disagree, or strongly disagree, if need be. Some cunning barristers have a tactic of luring you into a succession of positive answers and then throwing a difficult question at you in the hope that you also give a positive answer. That is why you need to think about every question that you are asked and respond accordingly. Concentrate, but do not worry about where the questioner might be getting to 10 questions ahead! You are there to put forward your expert evidence, in an independent manner, not to be an advocate for either party, nor should you lay down meekly if challenged by a distinguished barrister, or even the Judge for that matter. There is nothing wrong, with disagreeing with, or challenging, a proposition put by the judge, if that is your position. If you are asked a question which falls outside your area of expertise or outside the areas covered by your report, it is quite proper to indicate that you are unable to answer the question. It is far better than seeking to give answers beyond your area of expertise, which only give the opposing lawyer the opportunity to attack your credibility. If you feel unable to give an answer because it requires more research or consideration, it is reasonable and appropriate to ask for further time. Sometimes, the Court may adjourn early for lunch to give you time, or may put your evidence on the particular answer over to the following day. Do not be afraid to give an answer which may appear to be against your client s interests, if that is the correct position. You don t have to kick a goal with every question you answer; Conclusions If you give impartial, objective evidence, within the area of your expertise, do so in a confident, concise and comprehensible manner, politely, whilst speaking slowly and distinctly, and focus on answering the questions you have been asked, that is about the best you can do. Unfortunately, sometimes I have found that experts are leaders in their field of expertise and provide excellent reports, but tend to be poor witnesses, frequently because they are difficult to understand, they speak too fast, they talk too much, or they crumble at the slightest attack, or they become very defensive. So your skill base needs to include not only your ability to prepare a comprehensive experts report, but also to ensure that your performance as a witness re-enforces the opinions contained in your report. Unfortunately, sometimes I have f o u n d t h a t e x p e r t s a r e leaders in their field of expertise a n d p r o vi d e excellent reports, but tend to be poor witnesses

9 BuildLaw - Issue No 9 March Case examples There are some recent decisions which focus on what makes a good expert and what characteristics identify a poor expert: 1. In the case of ASIC v. Plymin, Elliott & Harrison [2003] VSC 123 Mandie J in the Supreme Court was highly critical of the expert report which he described as unimpressive, illogical and fails to scrutinise the real issues with any care. In addition, the report overlooked major key considerations, and used what he described as loose language. In relation to the performance of the expert in Court, His Honour noted that the witness displayed confusion in relation to key material and failed to provide valid reasoning in arriving at his conclusions. Finally, rather than making an independent assessment of the company s ability to continue its operation as a going concern, which was the key issue requiring expert evidence, the expert merely relied on the opinion expressed by the auditors, rather than undertaking an independent assessment. 2. In another case of Visa International Services Association v Reserve Bank of Australia I [2003] FCA 977, the Federal Court commented positively upon a highly qualified expert who: paid regard to a number of sources of information which he outlines in his statement, in addition to the assumptions which he made in compiling his report. In other words, the witness verified the assumptions which he relied upon and clearly set them out. The witness also made a detailed analysis of the data provided and reached a conservative opinion acknowledging that the calculations required profession judgement and estimates. The Judge referred to the performance of the witness under crossexamination, in which he had adhered to his views and was not shaken. 3. In a further case, the court made reference to the fact that the witness evidence was given without regard for the consequence to any party of what he was saying. In addition, reference was made to qualifications, the manner of undertaking of his work and giving evidence. Concurrent evidence There is an increasing trend in the use of concurrent evidence in what is known as a hot tub, although there still remains a degree of suspicion about the effectiveness of this process. The way in which concurrent evidence generally works, subject to variation, is that after the experts have prepared their report they get together to prepare a joint report on matters about which they agree and those in which they disagree, giving short reasons as to why they disagree. At the conclusion of the parties lay evidence, the experts are called together to give evidence in relation to their particular areas of expertise, and sit together for the exercise. Each expert is then

10 BuildLaw - Issue No 9 March asked to identify and explain the principal issues as they see them. After that each expert can then comment on the others evidence and they can ask questions about what has been said, or left unsaid. Each counsel is then invited to identify the topics upon which they seek to cross-examine. If an expert gives an unfavourable answer, or an answer that counsel does not understand, he or she can turn to his/her own expert and ask what that expert says about the answer. It has been said that concurrent evidence has the advantage that it encourages experts from giving inappropriate answers, because the expert knows that there is another expert on the spot who can expose an inappropriate answer immediately. Also it reinforces appropriate answers and gets to the critical point rapidly. This is a quantum leap away from the traditional process of the rigorous crossexamination of each expert separately, and sometimes days, if not weeks apart, and judges who have initially had reservations about the idea are strongly supportive of its use in practice, and note that it ensures that all the experts are on the same page when they are giving evidence. There is also the added benefit of considerable saving of court costs and time, because obviously it is far quicker and more efficient for all the experts to give their evidence together than for each expert to give evidence separately and then be subject to extensive cross-examination, sometimes by a number of parties. Certainly, concurrent evidence looks like the way of the future, although there is still significant criticism from experienced judges who take the view that it favours the more persuasive, confident and assertive experts who are able to win the judges mind by overshadowing or overwhelming the others whose degree of expertise and knowledge may in fact be greater. There is also the risk that experts will be chosen for their persuasive ability as concurrent witnesses and be tutored in performance techniques. Nevertheless, each case will depend upon its own circumstances, and the particular leanings of the judge and counsel involved, so most cases will still involve conventional giving of expert evidence and conventional cross-examination, whilst other cases, particularly multi-expert witness cases with complex issues, will proceed in the concurrent evidence route.

11 BuildLaw - Issue No 9 March CONTRIBUTIONS: Contributions to BuildLaw are welcome. BuildLaw is published four times a year in March, June, September and December. Readers are invited to submit material to be considered for publication by to the editor at editor@buildingdisputestribunal.co.nz. Contributions may consist of articles, case notes, book reviews, news of forthcoming events and other matters of interest to readers. Contributors are entirely responsible for the accuracy of case names and citations, quotations and other references, spelling etc. All contributions should be in final form and in word format. DISCLAIMER: BuildLaw is published by Building Disputes Tribunal. BuildLaw is a newsletter and does not purport to provide a comprehensive analysis of the subjects covered or to constitute legal advice. BuildLaw is intended to promote and engender discussion, debate, and consideration of all matters in relation to the development and application of construction law, the resolution of building and construction disputes, and the processes that are used for the resolution of those disputes. Articles, commentaries and opinions are intended to raise questions rather than to be emphatic statements on the subjects covered and the views expressed are the views of the author and are not necessarily those of the directors, servants and agents of the Tribunal. Information published is not guaranteed to be correct, current or comprehensive and the Tribunal accepts no responsibility for the accuracy of any information published in BuildLaw and no person should act in reliance on any statement or information contained in BuildLaw. Readers are specifically advised that specialist legal advice should be sought in relation to all matters in relation to, or in connection with, the subjects covered and articles published in BuildLaw. COPYRIGHT: This issue of BuildLaw and all material and information contained herein are subject to the full protection given by the Copyright Act In many cases the copyright of individual articles remains the property of the author and articles and commentaries should not be reproduced without first obtaining the express authorisation of the relevant third party copyright owner concerned. If you are in any doubt as to whether a proposed use is covered by this licence please consult the Editor. Building Disputes Tribunal (NZ) Limited. All rights reserved BuildLaw : Reaches you first with the construction law news you need to know Gives you access to important judgments when they are delivered Gives you expert commentary and analysis of key legal developments and issues affecting your business Explains complex issues clearly and simply