Ethical Considerations in Dealing with Experts

Introduction

The topic of the presentation tonight is “Ethical considerations in dealing with experts”.

By “dealing with experts”, we are meaning to refer to essentially those dealings which involve a barrister outside of the Court room in the preparation for a hearing.    

These types of dealings are typically not conducted under the gaze and observation of our colleagues at the Bar nor are they conducted in the presence of a judge.

Because they are in the nature of private as distinct from public dealings, the barrister’s conduct very rarely comes under scrutiny. As a result, there are very few cases decided about conduct in this context.

There are two aspects which are immediately noteworthy when we consider our dealings with experts:

Because of these matters there is an acute interest in ensuring that ethical considerations in dealing with expert witnesses are clearly articulated and well understood. 

In an American context, one commentator has said¹:

Even though [dealing with witnesses] occurs in practically every lawsuit, it is almost never taught in law school, not directly regulated, seldom discussed in scholarly literature and rarely litigated.  [Dealing with witnesses] is treated as one of the dark secrets of the legal profession.  The resulting lack of rules, guidelines, and scholarship has created significant uncertainty about the permissible types and methods of [dealings with witnesses]. 

We are not quite as pessimistic about the state of affairs in Queensland, particularly as most matters we wish to discuss tonight will hopefully appear to reflect common sense. 

However, what we wish to note at the outset is that:

a. The procedural rules and laws concerning the preparation of expert evidence have been the subject of dynamic change in recent years. In particular:

i. Specific rules concerning the content of expert reports have been promulgated;

ii. Privilege in respect of draft expert reports has been abrogated;

b. In some States, codes of conduct for expert witnesses have been promulgated;

c. Whilst there has been significant change in the procedural rules and laws regarding expert evidence, the published ethical rules for dealings with witnesses continue to make no distinction between lay and expert witnesses and, as a result, we consider that very little objective guidance is provided to members of the Bar about how they should deal with experts in the context of the new procedural rules.

In tonight’s presentation, we are really attempting to identify particular situations with the aim of fostering informed consideration.

We understand that the NSW Bar has been grappling with some of the issues raised tonight and could we commend to anyone who is interested in undertaking further reading, the article prepared by Hugh Stowe of the NSW Bar Preparing expert witnesses: a search for ethical boundaries, NSW Bar News, Summer 2006/2007.²

Ethical considerations in dealing with expert witnesses can arise at any stage of a case.  

This evening, we have addressed five different areas where ethical issues may arise:

(1) First, the engagement of the expert.

(2) Secondly, drafting the expert’s report.

(3) Thirdly, commenting on the expert’s report.

(4) Fourthly, advising the expert on the process of giving evidence. 

(5) Fifthly, we also wish to at least identify the comparative position in the United Kingdom.

I would now invite Dan Butler to deal with Parts 1 and 2.

Part 1: Engagement of the expert

Turning then to the first part of our presentation, the engagement of the expert.

We want to discuss 2 sub-issues that arise.

The first sub-issue is the engagement of the same person as both independent expert and advisor.

The second sub-issue is the use of one expert to act as the independent expert and another person to act as advisor.  

Engagement of an expert as both advisor and as independent expert

Turning then to the first-sub issue that we want to address.  

That is, the situation where the same person has been appointed by a party to provide expert assistance as well as act as independent expert.

Take the following example.  Before proceedings are even started, it may be necessary to engage an accounting expert to provide advice.  For instance, your instructing solicitors may need expert accounting advice to calculate loss.

At this early stage, the expert may have acted as an advocate and as part of the team trying to reach a favourable settlement.  The expert may even go into battle formulating arguments that support his client’s case.

What happens then when the case does not settle and proceedings are commenced and it becomes necessary to appoint an independent accounting expert to prepare a report for trial?

Given that the expert has already been engaged on the matter, it is usually more cost effective for that same person to also act as independent expert.  Thus, a formal letter of engagement might be prepared and overnight the expert is transformed from a “hired gun” acting for the party into an independent expert whose duties are to the Court.

Does this present any ethical difficulties for Counsel?  

What about the situation where the other side may not even be aware of the independent expert’s earlier engagement?

In the NSW case of Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171, Allsop J expressed a qualified view. His Honour thought there was no ethical problem in using the same expert to act as both advisor and independent expert but expressed this qualification (at [676]):

As long as that person and the legal advisors understand and recognise the difference between the two tasks, and keep them separate.  [emphasis added] 

This is a significant qualification and it might represent a state of affairs which is practically difficult to achieve. 

In the example we have postulated, the reality may be that the expert has become too immersed in the case, viewing matters from the client’s perspective as to have lost any claim to independence. Practically, how such an expert is to understand and keep separate the task of acting as his client’s adviser and acting as an independent expert is also likely to pose some difficulties. 

Which raises the question – what if the expert does not appreciate the difference between the two roles?  Does Counsel have a role to play in ensuring the expert understands the difference?

There are all sorts of scenarios that come to mind which involve varying degrees of counsel’s involvement. Assuming that counsel is briefed to be involved in the preparation of the expert report, we consider that there is a role for counsel to play in attempting to ensure that the expert understands that he has “crossed the Rubicon” and understands the new role he is assuming in the case. 

In the southern states and the UK, there are specific codes of conduct for expert witnesses.  Those codes address similar principles to those contained within chapter 11, part 5 of the UCPR dealing with experts.  Thus, in those jurisdictions, Counsel can commend the expert to familiarise himself with the code and remind the expert that it is important that he abides by the code.  

In Queensland, there is no code of conduct for expert witnesses.  Nonetheless, it is obviously good practice to refer the expert to their obligations in the UCPR to act independently and remind them that their overriding duty is to the Court.  In particular, under rule 426 the independent expert must assist the Court impartially on matters relating to his expertise.  That duty overrides any duty that the expert has to the party that appointed him.  Further, it is a requirement under rule 428 that the expert state in his report that he understands that the expert’s duty is to the Court and that he has complied with that duty.  In the Federal Court there is a practice direction on expert witnesses to similar effect.

So in the situation where an expert who has acted as an adviser then becomes the independent expert and a barrister is briefed to be involved in the preparation of the report, we think that at the very least the barrister should seek to test the expert by reference to the requirements of rules 426 and 428 with a view to satisfying him or herself that the expert understands his duty. 

Strategic considerations

However, even if there is no ethical restriction on engaging the same person as advisor and as independent expert, there may be strategic considerations for not doing so.

There are potentially three strategic considerations in play.

First.  The first concerns the admissibility of the report.  

This issue came before the NSW Court in the recent case of ASIC v Rich.  ASIC v Rich was a case brought by the regulator stemming from the collapse of telecom company One.Tel.  In that case, PriceWaterhouseCoopers was initially engaged to assist ASIC in preparing its case.  At that investigatory stage it was not appointed as independent expert.  Subsequently, PWC’s role changed and it was appointed as independent expert.  Mr Rich argued that PWC’s report should be excluded because, amongst other reasons, the information that it learned during its initial engagement meant that it was not independent.  At first instance ([2005] NSWSC 149 at [348, 365]), Austin J held that the expert’s report should be excluded.  Austin J considered that in light of PWC’s initial role in assisting ASIC to investigate the matter, it was more like an advocate than an independent expert. 

The case subsequently went on appeal to the NSW Court of Appeal ([2005] NSWCA 152).  The Court of Appeal overturned Austin J’s decision and allowed the report back into evidence.  Even so, the lessons from the case are clear – namely, the need to keep an expert untainted.  

Second.  The second strategic consideration is that the expert may be accused of bias, thereby reducing the weight to be attached to his report.³  For example, during cross-examination, the expert’s role as advisor may be exposed.  While this would not render his report inadmissible, it may lead the Court to question the impartiality of the expert and place less weight on the expert’s opinion.  

This is exactly what happened in the Victorian case of Cobram Laundry Services Pty Ltd v Murray Gouldburn Co-operative Co Ltd [2000] VSC 353.  In that case, it became apparent in cross-examination that an independent expert had previously provided advice and had prepared an interim report.  That report was more favourable to the other side than the report he ultimately prepared for the trial.  The changes to the report had been made following discussions with his solicitors.  The Court was critical of this approach and found that his evidence was “tainted” by the intervention of his solicitors.

Needless to say, the Court preferred the evidence from the other expert. 

Third.  The third strategic consideration is that there is always a risk that privilege in any communications with the advisor may be waived once they become appointed as independent expert.  In this context, there is a wealth of authority on implied waiver, such as ASIC v Southcorp (2003) 46 ACSR 438 and the Queensland Court of Appeal decision in Interchase Corporation v Grosvenor Hill [1999] 1 Qd R 141.  We don’t propose to delve into the substantive law on waiver of privilege, but certainly, maintaining privilege in any communications with an expert is an important strategic consideration to bear in mind.

The use of more than one expert

Turning then to the second sub-issue concerning the engagement of the expert.  This is the situation where more than one expert has been engaged in relation to the same issue.

For example, in a high value commercial dispute, a party may engage one expert as advisor and a separate expert to act as independent expert.  The advisor is providing expert assistance whereas the independent expert is providing expert evidence.

These are colloquially known as “dirty” and “clean” experts.  

I am told that it is not uncommon in the United States for a third expert to be appointed just to keep an eye on the other two.

The “clean” expert is engaged to act as the independent expert.  His paramount duty is to the Court, not to the party that retained him.  He owes the duties set out in the UCPR.

By contrast, the advisor is referred to as a dirty expert because he is not independent.  He has no duty to the Court.  He acts solely on behalf of the litigant.  His role is to provide advice and formulate arguments in order to advance the case.

One advantage which we understand is sought to be gained by the retainer of a dirty expert is that privilege arguably can be maintained in respect of the dealings with that expert who is in the nature of a consultant.  For example, privilege arguably would not be lost in any material that you send to him for comment.  Opinions from Counsel and other privileged material can be sent to the dirty expert without fear that privilege will be lost.  Similarly, any notes generated by the dirty expert are privileged.  We understand that this position has not been tested in Queensland under rule 212(2) of the UCPR.

So, is there anything ethically impermissible in retaining a dirty expert?

Certainly there is nothing unethical about trying to maintain privilege.  In fact, that seems to be a wholly sensible thing to do. 

The only case that we could find which comments on this issue is the NSW decision of Evans Deakin that I referred to earlier.  In that case, Allsop J commented, without any disapproval, on the use of dirty experts.  He said (at [678]):

A practice has grown up, certainly in Sydney, perhaps elsewhere, in commercial matters, for each party to arm itself with what might be described as ‘litigation support expert evidence’.

Thus, one might say that Allsop J implicitly approved of the practice of retaining dirty experts, or at least he didn’t disapprove of this practice.  However, his Honour stressed the importance of distinguishing between the very different roles played by clean and dirty experts.  He stated (at [676]):

There may well have been great value in those preparing Sebel’s case obtaining the views of [their expert].  Such views would no doubt have assisted them in analysing and preparing the case and in marshalling and formulating arguments.  That is the legitimate, accepted and well known role of expert assistance for a party preparing and running a case.  Expert evidence in which a relevant opinion is given to the Court drawing on a witness’ relevant expertise is quite another thing. 

Thus, his Honour was very keen to distinguish between what we have been colloquially calling the role played by a dirty expert and the role played by a clean expert.   

Part 2: Drafting the expert’s report 

I now want to turn to the second part of our presentation – the drafting of the expert’s report.

There are 2 sub-issues we wish to discuss in connection with drafting of the expert’s report.  

First, protecting privilege, and second, Counsel’s involving in drafting the report.

Protecting privilege

First.  Turning then to the first sub-issue, protecting privilege.

In Queensland, draft expert reports are not privileged and need to be disclosed.⁴

In light of this, solicitors, and sometimes Counsel, are involved in extensive conferring with an expert prior to preparation of their report.  This often takes place in Counsel’s chambers.  Usually this is in order to discuss and test the preliminary opinions of experts prior to preparation of a report.

This avoids the creation of progressive versions of draft reports that pass between the expert and lawyers.  This is clearly an advantage because the various draft reports would need to be disclosed to the other side.

However, is there anything inappropriate with this practice?

As we mentioned earlier, there does not seem to be anything unethical in strategies such as this which are designed to protect privilege.  In fact, it seems incumbent on Counsel to take any necessary steps in order to preserve privilege so far as possible.

Thus, a good case can be made that extensive conferring with an expert prior to preparation of the expert’s report is not only an appropriate practice, but in fact, is probably good practice in that it maintains privilege.

The rules do tend to create some contrived and artificial situations. We understand that some members of the Bar direct their solicitors not to take verbatim notes of what the expert says in a preliminary conference because of a concern that the notes might be discoverable under rule 212(2).  The idea is that the solicitor should sit in the conference absorbing the import of what is said and can later reflect the substance of the opinion in a letter of advice to the client cloaked with privilege. For example, we met with Dr Jones. His view is essentially x, y and z, therefore we do not propose to call him. 

We think that there is nothing objectionable about this process but it should be observed that if ethical behaviour is essentially meant to be grounded in norms of honesty and common sense this type of practice is at least contrived and unusual in nature which invites the question, why is it ethical? We think the answer is that the behaviour (although contrived) protects a privilege otherwise available to the client. 

Counsel’s involvement in drafting the report

Second.  The second sub-issue we want to address concerns the drafting of the expert’s report itself.

This raises the question: is it appropriate for Counsel to have any involvement in the drafting of the report?  The involvement of Counsel in the drafting of an expert report is certainly problematic.  The lurking danger being that the opinion within the report becomes that of the lawyer rather than the expert.

So, what, if any, involvement may Counsel have in drafting the report?  

The answer really depends on the distinction between form and substance. There are a wide range of conceivable involvements for counsel which involve matters of form: proof reading; addressing issues of admissibility; requesting the expert to reveal his reasoning process for conclusions. 

These are the types of task which are classically performed by counsel and which are unobjectionable.  

The case law endorses and encourages this type of limited form of involvement by Counsel in drafting an expert’s report.  In Harrington-Smith v Western Australia (No 7) [2003] FCA 893 at [19], Lindgren J stated⁵:

Lawyers should be involved in the writing of reports by experts; not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.
…

My impression is that in some cases, beyond the writing of an initial letter of instructions to the expert, lawyers have left the task of writing the reports entirely to the expert, even though he or she cannot reasonably be expected to understand the applicable evidentiary requirements.  Such a course may have been followed because of a commendable desire to avoid any possibility of suggestion of improper influence on the author.  But I suggest that the distinction between permissible guidance as to form and as to the requirements of [the admissibility of expert evidence under] the Evidence Act, on the one hand, and impermissible influence as to the content of a report on the other hand, is not too difficult to observe.  It does not serve the interests of anyone, including those of the expert witness, to deny him or her the benefit of guidance of the kind mentioned.  [emphasis added]

Lindgren J’s comments were endorsed by the Full Court of the ACT Supreme Court in R v Coroner Maria Doogan [2005] ACTSC 74 at [118].  

In Doogan, an inquiry was being conducted under the Coroners Act 1997 (ACT) into fires that occurred in the ACT in 2003.  Proceedings were brought seeking to shut down the inquiry on the grounds of bias.  One of the grounds relied upon was the involvement of Counsel assisting the inquiry in drafting the expert’s report.

Higgins CJ, Crispin and Bennett JJ endorsed Lindgren’s comments in Harrington-Smith and went on to state (at [119]):

Accordingly, the mere fact that some editing of the [expert reports] occurred does not demonstrate any impropriety on the part of the lawyers in question or provide any valid ground for concern. …  [However, counsel assisting the inquiry was still required] to ensure that the reports conveyed the author’s opinions in a comprehensible manner, that the basis for those opinions was properly disclosed and that irrelevant matters were excluded.  It has not been established that any of the lawyers assisting the first respondent sought to change passages in the reports conveying opinion or information, so the prosecutor’s complaints seem to have been based upon the editing of passages that were, at best, of marginal relevance.

Allsop J, in the Evans Deakin case that we mentioned earlier, also approved of this approach, and in particular, the need for Counsel to ensure that an expert report only contains relevant evidence.  He stated (at [679]):

Parties and their legal advisors should expect the Court to look with rigour upon expert evidence in order to ensure that only relevant opinions, based on relevant expertise and on coherent and ordered assumptions are put on the Court record.  [emphasis in original]

Thus, Counsel is perfectly entitled to do some drafting.  For instance, there could not be any ethical objection preventing Counsel from deleting irrelevant evidence from the report or removing evidence that goes beyond the expert’s expertise.  This would not only assist in the presentation of the client’s case but would also assist the Court in the removal of inappropriate material from the report.⁶

On the other hand, the real significance of Lindgren J’s comments in Harrington-Smith v Western Australia (No 7) lies in the recognition that Counsel should not be involved in drafting any substantive part of the report.  This would be so even if the report is drafted after extensive consultation with solicitors and Counsel. 

In this context, an expert report is quite different to a witness statement.

Barristers Rule 45 is instructive in this regard.  It provides that:

A barrister must not suggest … in any way to any prospective witness … the content of any particular evidence which the witness should give at any stage in the proceedings.

Thus, it is conceivable that by drafting an expert’s report, a barrister may be breaching Barristers Rule 45 by suggesting to the expert the evidence he should give to the Court.

Perhaps a more ethically sound strategy is preparing a template for the expert’s report.  That is, provide the expert with a template for how the report is to be structured.  There does not appear to be anything inappropriate in Counsel taking this approach.  In fact, it may serve to increase the persuasiveness of the report by identifying the questions that the expert is to address and setting out how the report should be structured, with appropriate headings and sub-headings.  No doubt the template could only be prepared after extensive consultation with the expert in order to understand what the issues were and the structure in which they should be presented to the Court.  

Even with this approach, care should no doubt be taken to ensure that the headings used in the template itself were not suggestive of the conclusions that the expert should reach.

Part 3: commenting on the expert’s report

I now want to turn to the third part of our presentation – commenting on drafts of the expert’s report.

In this context, it is not uncommon for Counsel to be sent a copy of a draft report and asked to comment on it. The request for comment may be made by way of email and be attended by circumstances of urgency.  At other times, you may be briefed to confer with the expert for the purpose of commenting on his report. 

The comments in preparation should be limited to the matters of form which have been identified such as addressing issues of admissibility; requesting the expert to reveal his reasoning process for conclusions and perhaps most importantly directing the expert to issues which have not been considered and need to be considered as part of the report. It is also appropriate to seek clarification of conclusions. At the stage of comment, it will also be appropriate to make inquiries aimed at ensuring that the expert will be able to sign off on a report which complies with the Rules.

Crossing the line

The primary ethical consideration must always be to ensure that your comments are not suggesting to the expert the ultimate content of his opinion. 

Although this is not a helpful statement, much ultimately depends on the particular circumstances of a case when determining whether the ethical line has been crossed.  

An extreme example can be seen in the 1989 Victorian case of Phosphate Co-operative Co of Australia Pty Ltd v Shears [1989] VR 665.  This is not a modern era case. It was not litigation attended by expert codes of conduct or procedural rules concerning the content of reports. 

In that case, Arthur Anderson was engaged as the independent expert to prepare a report in connection with a takeover.  Arthur Anderson subsequently prepared a report in final form.  This report was then delivered as a final report, not as a draft.  Following that, a new report was prepared which superseded the previous report.  This new report involved substantial re-drafting.  Perhaps unsurprisingly, the new report was much more favourable to Arthur Anderson’s client.  It emerged in cross-examination that changes between the first and second reports had resulted from extensive telephone discussions and a conference with Counsel.

His Honour Mr Justice Brooking was very critical of the expert and his advisors.  His Honour stated (at 681, 683):

It seems to me dangerous for an expert to confer with the client and its advisors in this way.  No doubt [the expert] would say his independence was in no way imperilled, but I cannot agree.
…
It is impossible to lay down specific rules dealing with communications between the expert, on the one hand, and the company and those representing it, on the other, everything depends on the circumstances.  The guiding principle must be that care should be taken to avoid any communication which may undermine, or appear to undermine, the independence of the expert.  What happened here did not accord with that principle.  The report was produced under the supervision of the company and its advisors and owed much to their exertions.  It did not represent the genuine independent opinion of its authors.

On the basis of the dramatic difference between the two reports, the judge concluded that the expert had lost his independence and that the report adduced into evidence was “A report produced under the supervision of the company and its advisors and which owed much to their exertions”. We have probably all been involved in cases where an expert report could be described as a report “produced under our supervision and owing much to our exertions” but did we act unethically in the preparation of such a report?  

That is always a question which must depend on all the circumstances. What can we say by way of general propositions? We are entitled to test the expert’s reasoning process. To test whether considerations have been taken into account. To test his views in response to alternative scenarios and data. Throughout this type of process, as long as we remain satisfied that the expert remains cognisant of his duty to the Court and knows that he is expected and allowed to freely form his own conclusions, then there should be no ethical issue.

Ultimately, I think the point is best dealt with by the following observations of his Honour Justice Callinan in Boland v Yates Property Corporation Pty Ltd [1999] HCA 64, unreported, where his Honour stated (at [279]):

For the legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is influenced by the exigencies of litigation or is not an honest opinion that he or she holds or is prepared to adopt.  I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions.

Could I depart this topic by ending with an example from the case law of what might be called ‘crossing the line’.  I refer to the 2005 decision of Wilcox J in Universal Music Australia Pty Ltd v Sharman Licence Holdings Ltd [2005] 220 ALR 1.  

That case involved a claim for breach of copyright against the respondent for supplying computer software for downloading music from the internet.  Expert evidence was required in relation to computer systems and software.

Wilcox J commented that much of this evidence was “helpful, some of it extremely valuable”.  However, those comments did not apply to Professor Ross’ evidence.  Wilcox J said that his confidence in Professor Ross was “shaken during the course of cross examination”.

In particular, during cross-examination, Professor Ross was shown email exchanges between him and one of the instructing solicitors.  In one of those emails the solicitor had deleted a sentence in the draft report and suggested a substitute sentence.  Professor Ross replied:

I was not aware of this, even after our testing.  But if you say it is so, then fine by me.

The report was then amended and put in final form with the solicitor’s suggestion.  Wilcox J said (at [231)]:

I am forced to conclude that Professor Ross was prepared seriously to compromise his independence and intellectual integrity.  After this evidence, I formed the view it might be unsafe to rely upon Professor Ross in relation to any controversial matter.

Part 4: Advising the expert on the process of giving evidence

Turning then to the fourth part of our presentation, namely, advising an expert on the process of giving evidence.

We have included in this part the process of testing the expert’s evidence in conference. 

This process is probably dear to the heart of a number of senior members of the Bar. Years ago, I had an expert say to me after giving evidence that the experience in Court had been like having a morning tea break compared to the cross examination he had received in the chambers of our own silk. 

Where do we sit ethically with giving the expert “a working over” in conference in preparation for giving evidence?

The starting point is Barristers Rule 46 which authorises: 

Testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’ attention to inconsistencies or other difficulties with the evidence.

Thus, there is no problem in Counsel testing the opinions contained in a draft report.  The ethical rule does not actually articulate the precise nature of the testing to be undertaken. It is no doubt regarded as something of a term of art. 

We suggest that the important ethical boundary lies between testing an opinion and suggesting the evidence that the expert should give. That obviously is a matter of common sense.  The distinction is easy to state. It may in a given case be difficult to apply. Ultimately, part of our duty must include being satisfied that our expert is aware of his duties and is expressing opinions which reflect his or her honest assessment and belief.  

Can testing extend to rehearsing cross-examination with an expert?  Of course, expert witnesses will give their evidence in chief by way of report, so the question of rehearsal only arises in relation to cross-examination.

What does rehearse mean? “To practice for later public performance”. We would expect that a straw poll amongst us tonight would say that you are allowed to test a witness by practising for cross examination.  We would say tonight that testing an expert’s opinion in conference by reference to questions that he or she is likely to be asked in cross examination is an essential and important part of trial preparation.

Apart from anything else, the client has usually paid good money for the report and is entitled to know what the expert is likely to say under cross examination for the purpose of informing its conduct of the litigation.

In the United States, there is no prohibition on rehearsal.  In fact, it is a strongly advised practice amongst trial lawyers.

In Australia, there is one case which seems to adopt a conservative view at least in the context of rehearsing cross examination with witnesses generally. In the NSW case of Re Equiticorp Finance Ltd; ex parte Brock [No 2] (1992) 27 NSWLR 391 at 395, his Honour Justice Young stated:

In ordinary litigation there are very severe limits, in the interests of justice, in preparing a witness to give evidence.  Some matters of preparation are clearly in order, and some are clearly out of order, but it is not always possible to state general rules as to where the line should be drawn.  It is clear that a witness might confer with his or her solicitor or counsel, or the solicitor or counsel for the party calling the witness, and that during such conference the solicitor or counsel concerned may give the witness advice.  That advice may certainly include:  

• advice that the witness should refresh his or her memory from contemporaneous documents;
  
• directing the witness’ mind to the point about which questions may be asked;
• giving the witness a sketch of Court procedure;
• directing the witness’ attention to points in his or her evidence which appear to be contradictory or fantastic;
• reminding the witness to bring to Court all relevant documents;
• advising the witness as to the manner of answering questions (eg “In cross-examination listen to the question, just answer the question asked with as concise an answer as possible”); and
• giving advice as to appropriate dress and grooming.

There may be other permitted areas.

On the other side of the line, a solicitor or counsel does not advise the witness as to how to answer the question.  Also we do not in Australia do what apparently happens in some parts of the United States, rehearse the witness before a team of lawyers, psychologists and public relations people to maximise the impact of the evidence.  [emphasis added]

We read these comments as not being concerned with the more orthodox and common approach of counsel simply testing a witness’ evidence in conference by conducting something like a cross examination. We read his Honour’s comments as being more directed to the formal, mock rehearsals of evidence conducted in the States which involve coaching rather than testing and which are apparently designed to maximise the impact of evidence on juries. 

Part 5: The position in the United Kingdom

Can we end tonight by considering the comparative position in the United Kingdom.

The position in the UK seems to be stricter than in Australia.

The leading decision in this area is a judgment by Lord Wilberforce from 1981 in Whitehouse v Jordan [1981] 1 WLR 246 at 256-257 where Lord Wilberforce said.  

While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.  [emphasis added]

Thus, there is UK authority from the highest appellate body to the effect that Counsel should have no involvement in the form of the report.

The following year, in the decision of Kelly v London Transport Executive [1982] 1 WLR 1055 at 1064-1065, Lord Denning, as Master of the Rolls, made comments to similar effect.  He was firmly of the view that Counsel must never settle the evidence of medical experts, nor must Counsel ask a medical expert to change his report.

A decade later, Creswell J in a celebrated decision in 1993 called the “Ikarian Reefer” [1993] FSR 563, confirmed these principles and set out a list of duties and responsibilities on experts in civil cases.  This decision subsequently was relied upon in drafting the expert’s code of conduct in the UK.  

In relation to the process of giving evidence, rehearsing cross-examination or any other form of evidence with a witness is prohibited by rule 705(a) of the Code of Conduct of the Bar of England and Wales.  It provides that “A barrister must not rehearse practice or coach a witness in relation to his evidence”. Again, much depends on what is meant by “rehearse or practice”. We know that we cannot coach.

We have our Barristers Rule 46 and we would say that “testing the evidence of a witness” is apt to include an element of rehearsal or practice. “Practice” in the sense of being exposed to what it is likely to be put against you. A strict view of the United Kingdom Rules would suggest that testing of that type is not permissible.

Conclusion

Ethical considerations in dealing with expert witnesses can arise at any stage of a case.  This evening, we have addressed five different areas where ethical issues may arise.

Our intention tonight has been to try and identify some potentially important issues, to identify problems that may arise and to identify where possible relevant comments in the case law.

Our concern is that the published ethical rules have not kept a pace with the changes made to the procedural rules and codes of conduct regarding expert evidence.  We think that the Bar would benefit from having specific ethical rules addressed to the preparation of expert evidence. 

In the Phosphate Co-operative case more than twenty years ago, Mr Justice Brooking said that 

It is impossible to lay down specific rules dealing with communications between the expert, on the one hand, and the company and those representing it, on the other, everything depends on the circumstances.

That point is no doubt correct. However we think that there is some attraction in the idea that the new National Rules governing the ethics of the Bar should at least attempt to state clearly the general propositions which are able to be articulated regarding barristers dealings with experts.  These would be the general rules which might clearly articulate a framework of boundaries within which particular cases have to be considered and worked out on their facts. Those general propositions should reflect consultation amongst the Bar and the Judiciary.

We consider that it is important to have a published set of ethical guidelines if for no other reason than that those guidelines provide objective support for barristers (particularly young barristers) who are trying to do the right thing. We have alluded to the cost of expert evidence. Because of the investment of money and despite the fact that this evidence is for the benefit of the Court, clients naturally can become quite proprietorial about the expert and the content of the report.  Where barristers are confronted with such situations, it would be beneficial for them to be able to point to clearly articulated rules. 

D A KELLY SC
D J BUTLER
1 December 2010

Footnotes

1. Applegate, Witness Preparation (1989) 277 Texas Law Review 277, at 279.
2. Stowe H, Preparing expert witnesses: a search for ethical boundaries, NSW Bar News, Summer 2006/2007.
3. See Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454, per Pagone J at [9]; and Aitchison v Leichardt Municipal Council [2002] NSWLEC 226, per Talbot J at [22].  See also the recent Queensland decision in Walter Mining Pty Ltd v Hennessey [2010] 1 Qd R 593.
4. See Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373 at [13], following Natwest Markets Australia Pty Ltd v Colliers Jardine (Qld) Pty Ltd, No 3141 of 1996, Derrington J, 22 April 1998, unreported.  The principle in Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board was recently confirmed by P Lyons J in Sandvik Mining and Construction Australia Pty Ltd v Dempsey Australia Pty Ltd [2009] QSC 233.
5. Lindgren J’s comments were quoted with approval in Jango v Northern Territory (No  2) [2004] FCA 1004, per Sackville J at [9-10].
6. See also papers by Branson J of the Federal Court titled Expert Evidence: A Judge’s Perspective, NSW Bar News, Summer 2006/2007 and by McDougall J of the NSW Supreme Court, titled Commercial List Practice: Expert Evidence, College of Law CPED Seminar, 28 July 2004. 

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Editoral Note

The proposition advanced based on Barristers’ Rule 45 that Counsel may be acting unethically by drafting “substantive” parts of an expert’s report must be open to debate if not qualification. Provided Counsel is not coaching the witness it is hard to see what the breach is. It is also difficult to see the basis for distinguishing an expert report from a lay witness’ affidavit, which presumably it is in order for Counsel to draft. The problem lies in coaching when drafting and that is the evil to avoid.