Weekly Blog #10 - Expert Witness

Q: 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:

a) that the experts confer, either before or after writing their expert reports;

b) that the experts produce to the court a document identifying where the opinions agree or differ;

c) that the experts evidence in chief be limited to the contents of the expert's expert report;

d) that all factual evidence relevant to any expert's opinions be adduced before the expert is called to give evidence;

Because experts are an exception whereby they are able to provide an opinion to the court, whereas other witnesses can only testify to assertions of facts within the witnesses own knowledge (Sanchez, 2012). As such, the courts use the rules to assist in ensuring that opposing expert opinions are based on the same underlying facts and used as a basis for clarification of complex issues rather than to try and sway the matter toward one particular argument.

The experts role is to assist the court without replacing its function (it is not the experts role to make the decision on the matter that court the is dealing with – rather it is the role of the expert to utilise their specialist knowledge or experience to provide insights to the court to assist the court in understanding complex issues) and in order to do that effectively, opposing experts must operate from the same set of facts (Murray, 2009).

Because opposing expert opinions may differ, the Federal Court sections assist in setting a uniform baseline for the facts on which the opinions are based (Murray, 2009).  The sections also allow for conferencing between the opposing experts (hot tubbing) to assist the court in understanding where the opinions agree and differ.  The court is then able to focus on the reasons behind the differences and take both into account in the final determination of the matter (Coenen, 2006).

My advice to a forensic accounting expert witness about to present is court is;

• Fully understanding the role of the expert, their duty to the court (which overrides all others) and the rules of the court to avoid having the expert evidence discarded.
• Stick to the evidence as contained in the expert report and do not try to answer the ultimate issue the court is addressing
• Ensure the expert testimony remains within the person’s sphere of knowledge – do not try to extend this outside the area of expertise.
• Be clear and not argumentative whilst giving evidence.

Reference

Coenen, T. L. (2006, Feb 23). Commentary: A winning strategy includes making the most of an expert witness. St.Charles County Business Record Retrieved from http://gateway.library.qut.edu.au/login?url=http://search.proquest.com/docview/342509595?accountid=13380

Murray, S. L. (2009). Being an expert witness. Professional Safety, 54(3), 20-23. Retrieved from http://gateway.library.qut.edu.au/login?url=http://search.proquest.com/docview/200324595?accountid=13380

Sanchez, M. H., & Zhang, S. W. (2012). THE ROLE OF THE EXPERT WITNESS IN ACCOUNTING FRAUD CASES. Global Journal of Business Research, 6(1), 103-111. Retrieved from http://gateway.library.qut.edu.au/login?url=http://search.proquest.com/docview/1270678871?accountid=13380

Additional Information

What is an Expert Witness:

https://www.youtube.com/watch?v=Wl92bHtrOvA

Requirements of an Expert Witness:
https://www.law.cornell.edu/rules/fre/rule_702

How to Qualify an Expert Witness:
https://www.youtube.com/watch?v=4DUnSQfAFkU