The expert witness & impartiality

Expert Witnesses are being nominated and paid by one of the parties to a legal dispute but should not work for the benefit of this party. How do they stay independent?

BACKGROUND – Under the various Australian states and federal Expert Witness codes of conducts, the loyalty of the Expert should be to the decision maker (Judge, Arbitrator etc.) and not to the engaging party.

Parties should remember that a credible Expert is important for favourable court decisions. If the information provided to the Expert is incomplete or misleading, the cross examination process would be more difficult and even embarrassing at times for the Expert. It would be much easier for the barristers of the opposing party to completely discredit the Expert’s evidence.

Nonetheless, many parties expect the Expert Witness to focus mostly on information that is to their benefit, since they are the ones paying for the service.

Expert Witnesses and Superintendents

The role of the Expert Witness is akin to the role of the Superintendent under the unamended AS Construction Contracts (such as AS4000-1997). The Superintendent is nominated and being paid by the Principal but should act independently and impartially. As a result, one of the most common amendments that Principal’s solicitors are making to the standard AS contracts, is to change the role of the Superintendent. Nevertheless, the role of the Expert Witness cannot be changed.

Our delay analysis consultants have years of experience as independent Expert Witnesses. They share the following advice to parties that should help them to get the best results when hiring an Expert:

  • Clarify the role of the Expert early in the process by engaging solicitors. The Expert’s role involves a delicate balance, therefore clarifying the role to the client is critical in managing the dilemma above.
  • Solicitors should act as a buffer between their client and the Expert and block any attempts from the client to place undue pressure on the Expert.
  • De-link the Expert’s ‘performance’ from payment. Solicitor should have the estimated amount of the Expert’s fees in a trust account at the time of engagement to ensure that the Expert will not be paid based on the result of the investigations.
  • Be transparent and allow the Expert access to all project’s documents/ information, whether supporting the case or not.
  • Experts’ conclave should be encouraged and the Expert should be allowed to adjust their opinions freely following such conclaves.

This post is written by Uri Shachar, Director of Solid Support’s Delay Analysis team. Please contact Uri directly uri@solidsupport.com.au if you would like to discuss further.