How not to brief experts - cause and effect

There is a fine line between a lawyer assisting an expert and endangering the admissibility of the entirety of an expert report. 

The recent decision of New Aim Pty Ltd v Leung [2022] FCA 722 provides an excellent example of what not to do.

In this matter, it seems that the lawyer responsible for the case had effectively drafted the report for the expert before a formal letter of engagement was sent.  In perhaps the most damming exchange, the solicitors for the applicant sent an email to the expert which stated:

“We are progressing your witness statement and would like to arrange a call with you next week to discuss it further.”

Then, in an extraordinary burst of work, the expert report was turned around in a single day by the expert. One eyebrow on the bench (or maybe two) was gently lifted towards the ceiling.

Under cross-examination, the expert ultimately conceded that it was difficult to say which opinions in the report were hers and which of those of her instructing solicitors.

After a careful analysis of the authorities, Justice McElwaine concluded that the expert’s independence had been compromised. While a lawyer has a part to play in the drafting of an expert report, that role must be limited to:

• the admissibility of expert opinion evidence;
• to identify the real issues for the expert;
• to indicate when the report fails to direct itself to the real issues;
• to point out the obscurities and gaps in the reasoning;
• to indicate that the report fails to distinguish between the assumed facts and the opinion which is supposed to be based on them; and
• to indicate that the report does not explain how the opinion is substantially based on the expert’s specialised knowledge.

The authorities set out by his Honour confirmed the guiding principle for lawyers, which is that care should be taken to avoid any communication that may undermine, or appear to undermine the independence of the expert.[1]

If you need a good summary of how to walk the difficult line of instructing an experts, we would recommend this decision to you.

[1] Phosphate Co-operative Company of Australia Pty Ltd [1989] VR 665