Expert Evidence

Question 1

What are three types of evidence used to prove facts?

Answer 1

1) Documents
2) Witness evidence (testimony)
3) Real evidence

Question 2

What are the different types of witnesses?

Answer 2

1) Witnesses of fact
2) Expert witness

Question 3

What is expert evidence?

Answer 3

Highly skilled individual whose role is to advise court impartially on matters within their expertise

Question 4

What is required if a party wishes to adduce expert evidence at trial?

Answer 4

A court order

Question 5

Is opinion evidence admissible?

Answer 5

Typically no, unless expert evidence or perceived facts

Question 6

What is a condition of opinion evidence?

Answer 6

Must be relevant to the matter at hand

Question 7

Who will decide who is an expert?

Answer 7

The court

Question 8

When will the court allow expert evidence?

Answer 8

If it is necessary to resolve the case

Question 9

Can a party instruct an expert without court approval?

Answer 9

Yes, of course. But will need court’s permission to rely on the evidence.

Question 10

What is the general rule on expert evidence in small claims track?

Answer 10

Usually only a single joint expert

Question 11

What is the general rule on expert evidence in the fast track?

Answer 11

1) 1 expert per party per expert field
2) Evidence from two expert fields
3) Normally only one expert allowed per issue

Question 12

What is the general rule on expert evidence in the intermediate track?

Answer 12

Generally limited to two experts per party

Question 13

What must parties do when applying for permission for expert evidence?

Answer 13

1) Provide an estimate of the costs of the proposed expert evidence

2) Identify the field in which expert evidence is required and, if practicable, the name of the proposed expert

Question 14

What is the duty of an expert?

Answer 14

Duty of expert to help the court

Question 15

What is the role of an expert?

Answer 15

1) Should be independent product of the expert
2) Independent assistance should be provided to the court in an objective, unbiased way
3) Should not omit facts or assumptions
4) Should make it clear if question or issue falls outside of expertise
5) If opinion was not properly researched, should be stated
6) If after exchange of reports, an expert witness changes their mind on a material, the change of view should be noted and communicated
7) Photographs, reports, surveys and other documents should be provided to the other side at same time of exchange of reports

Question 16

Are expert instructions privileged?

Answer 16

No

Question 17

Will the court order disclosure or cross-examine experts about their instructions?

Answer 17

No, unless instructions seem inaccurate or incomplete

Question 18

When can parties force disclosure against experts?

Answer 18

If they have reasonable grounds for doubting accuracy

Question 19

In what form is expert evidence given?

Answer 19

In a written report, unless court decides otherwise

Question 20

What must a report from an expert include?

Answer 20

1) Address to court, 2) Include expert’s qualifications, 3) List any material relied on, 4) Explain facts and instructions that form basis of expert’s opinions, 5) Clarify which facts are within expert’s own knowledge, 6) Explain who conducted tests and their qualifications, 7) Summarize different opinions, 8) Include conclusion summary, 9) State any limitations, 10) Be verified with statement of truth

Question 21

What does statement of truth confirm for expert evidence?

Answer 21

1) What facts are within expert’s own knowledge, 2) Expert’s opinions are true and complete, 3) False statements may lead to contempt of court

Question 22

Are written expert reports protected by privilege?

Answer 22

Draft may be by litigation privilege, but the final version is waived of any privilege

Question 23

When will expert evidence not be allowed to be used as evidence?

Answer 23

If there was a failure to exchange in accordance with the given directions

Question 24

What happens if parties cannot agree on a single joint expert?

Answer 24

Court can choose one from a list

Question 25

What happens if parties give separate instructions to a single joint expert?

Answer 25

They must share copies with each other

Question 26

What can other party do once expert reports are exchange?

Answer 26

The parties can put questions to the expert

Question 27

What are the rules for questioning experts?

Answer 27

1) Questions can be asked once 2) They must be for clarification of report 3) Must be sent within 28 days 4) A copy must be shared with other party 5) No fixed deadline for expert response 6) Expert’s answers become part of report

Question 28

What happens if an expert fails to answer question?

Answer 28

If expert fails to answer, instructing party may not be able to rely on their evidence or recover expert fees

Question 29

What is the rule on expert asking questions to the court?

Answer 29

1) Provide instructing party with proposed request at least 7 days before filing to court 2) Provide copy to other parties at least 4 days before filing it to court

Question 30

What is a joint statement of experts?

Answer 30

Court can order joint statement summarising agreed issues and disagreements (with reasons)

Question 31

Are agreements between experts binding?

Answer 31

No, unless parties expressly agree to be bound

Question 32

When can a party refuse to be bound to expert report?

Answer 32

If they have a justifiable reason

Question 33

Can legal representatives and parties attend expert discussions?

Answer 33

No – if lawyers do, they cannot interfere

Question 34

What can a party do if they believe expert has acted outside their expertise or incompetently?

Answer 34

1) Agreement should not be accepted by court 2) Further expert evidence should be allowed if first expert’s revised opinion seems unjustified

Question 35

Can discussions between experts be used at trial?

Answer 35

No, unless all parties agree.

Question 36

Can the court allow expert to give oral evidence at trial?

Answer 36

Yes, they might

Question 37

In small claims and fast track cases, does the expert appear at trial?

Answer 37

Only if it serves justice

Question 38

Who serves expert evidence first in court?

Answer 38

Typically the claimant, followed by the defendant

Question 39

What is “hot tubbing” of experts?

Answer 39

Experts in similar fields give evidence together – judge and/or legal representative asks each of comments and views on a particular issue.

Question 40

What can a party do to deal with unfavourable expert reports?

Answer 40

1) Put questions to the expert 2) Seek advice from another expert 3) Request the court to allow oral evidence 4) Request permission to use a different expert

Question 41

What is seeking advice from another expert in light of unfavourable expert opinion?

Answer 41

Party can consult an expert advisor to help prepare cross-examination questions

Question 42

Can a party request permission to use a different expert?

Answer 42

Yes, but this is rare and costly

Question 43

What is needed to change an expert witness?

Answer 43

Court’s permission

Question 44

What does court require before changing expert witness?

Answer 44

First report to be disclosed to prevent expert shopping

Question 45

What are the challenges in replacing an expert?

Answer 45

1) Difficult to get permission, 2) Risk of cost sanctions or loss of credibility, 3) Only allowed in exceptional cases, 4) Change of opinion is not justification to replacing

Question 46

If a party chooses not to rely on its own expert’s report, can the other party use it at trial?

Answer 46

Of course, my g.

Question 47

What should a party consider if their expert’s report is unfavourable?

Answer 47

Should consider settling