July 2018

Expert witness or advocate? The perils of blurring the boundaries

This article was originally published on June 29 by ExpertsDirect

If you have acted as an expert witness, you will know one of the most fundamental rules is that you must be impartial and not act as an advocate. This is codified in expert witness codes of conduct throughout Australia and is an established precedent in decided court cases. Despite this, experts regularly act as an advocate for the party which retained them, placing their reputation and future work at risk. In this bulletin, we will explore a few ways experts can end up acting as advocates and suggest ways to avoid this.

The Rule

The rule that an expert is not, and must not become, an advocate for a party is contained in expert witness codes of conduct in all Australian jurisdictions. Underpinning this rule is the principle that an expert witness is engaged to provide impartial assistance, so the court or tribunal will have the necessary evidence in the area of specialised knowledge and the claim can be properly decided.

The courts have repeatedly been required to decide cases involving expert witnesses that have assumed the role of an advocate. In a case in the Federal Court of Australia, Foster J stated: “He tended to be abrasive, partisan and dogmatic. He not infrequently appeared to assume the role of an advocate rather than of an impartial expert…Dr K’s theorising was shallow, unsubstantial and unacceptable.” 

Where a court believes an expert is acting as an advocate, and fighting a cause rather than assisting the court, it is likely to give little or no weight to his or her evidence, thereby disadvantaging the party which engaged them. In addition, the expert runs the risk of losing their credibility, reputation, and future work.

Some professional organisations, such as the Australian Property Institute (API), have adopted rules that require members to maintain independence and impartiality when acting as an expert witness. Expert members of these organisations may also face sanctions from the relevant body, impacting their ability to continue practising in their field.

The Issue

Generally, there are two common ways an expert may slip into acting as an advocate for a party.

The first is when acting as an advocate whilst:

  1. Preparing a report and opinion;

  2. Conducting a joint conference and preparing a joint report; and/or

  3. Giving evidence

This is the conduct referred to by Foster J above. By his or her conduct in reporting and delivering evidence, the expert may make it obvious they are not impartial, are unprepared to see the matter objectively, and are simply advocating one party’s position.

This first way is to be distinguished from the second. Rather than becoming an advocate during the process of preparing evidence, an expert may also slip where the expert acts as a representative for their client, for examples to a third party. This can occur before or during litigation, but before the expert has prepared any evidence. Should the expert later seek to act as an expert, he or she will be exposed to arguments from the opposing party that their evidence should be afforded little weight because the expertise not impartial and is continuing to advocate the party’s position.

The risk of this is heightened when the subject matter of the expert opinion is closely aligned to the legal issue to be determined, as in matters involving the valuation of land.

In a case of the Land Court of Queensland, a real estate company acted for applicants challenging the valuer-general’s valuations of certain properties, and also provided expert evidence to support the applicants’ claims as to value. The court stated that this compromised the valuer’s independence and the weight to be given to his evidence, and that the valuer became an advocate for the real estate company rather than for the client. The court also said the manner in which the real estate company ran the appeals was contrary to the API code of professional conduct.

The API has taken disciplinary action against members who have failed to provide independent and impartial expert evidence by assuming the role of an advocate and expert in the same matter, and/or allowing themselves to be influenced by the client’s needs.

However, it is easy to understand how an expert could unwittingly fall into such a trap.

Consider a land owner who receives a notice of intention to compulsorily acquire land in NSW under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). In such cases, the owner has six months to negotiate a claim before the issue of a ‘Proposed Acquisition Notice’ (PAN). The issuing of the PAN gives rise to the right to challenge the proposed acquisition amount in court.

Now let’s say a valuer is engaged by the land owner to provide advice and guidance in the pre-PAN negotiations. If the expert advocates for the land owner in those discussions, problems may arise if the expert then acts as an expert witness in court once a PAN is issued. In such a case, the expert’s evidence may be given little weight on the basis he or she is still advocating the land owner’s position, rather than presenting an independent and impartial opinion.

Another way such a conflict could occur is in building dispute work. A common first step is for one party to engage a building consultant to assess the work on site. The expert can easily begin discussing the matter with the builder on the party’s behalf, and could equally easily begin advocating the party’s position. If the issue cannot be resolved, and the matter is taken to a court or tribunal for resolution, the expert could face difficulties if he or she then seeks to act as expert witness for the party. Again, the expert could be challenged for not being independent and impartial, and his or her evidence may be given little weight.

What should experts keep in mind to avoid acting as an advocate?

Remember that your impartiality will be assessed on the entirety of your conduct from receipt of instructions and preparation of reports through to the provision of evidence before a court or tribunal.

You must ensure that you:

– Are properly engaged with an appropriate letter of instruction that refers to the relevant expert witness code of conduct;

– Are transparent in your correspondence with your instructor, so there is a clear document trail in respect of the documents/information you relied on in forming your opinion;

– Prepare your expert reports in a clear, concise and unemotional manner, properly identifying all assumptions and facts, their sources, the basis for your opinions and your reasoning process;

– Argue your position in joint-expert meetings and in court unemotionally, based on the facts, assumptions and proper reasoning process only;

– Make concessions where appropriate, and always remember that your role is to assist the court or tribunal to understand the specialised subject matter rather than to stand by the position contended for by the party instructing you;

– Avoid straying into commentary and opinion on areas outside your expertise, especially legal issues; and

– Ensure you provide your opinion to the party instructing you, and not to the other party (that communication should fall to the party instructing you). If you must present your opinion to the opposing party directly, make it clear that you are delivering your client’s position on the expert issue only, and nothing else.

Author: Gavin Stuart