Experts Code of Conduct
1. Application of Code
This code of conduct applies to any expert engaged to:
- provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or
- give opinion evidence in proceedings or proposed proceedings, or
- inquire into and report on a question as the Courts' appointed expert.
2. General Duty to the Court
- An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert's area of expertise.
- An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinions.
- An expert witness's paramount duty is to the Court and not to the person retaining the expert.
- An expert witness is not an advocate for a particular party.
3. The Experts' Report
A report by an expert witness must (in the body of the report or in an annexure) specify:
- the person's qualifications as an expert, and
- the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed) and
- reasons for each opinion expressed, and if applicable
- that a particular question or issue falls outside his or her field of expertise
- any literature or other materials utilised in support of the opinions, and
- any examinations, tests or other investigations on which he or she has relied and identify, and give details of the qualifications of, the person who carried them out.
If an expert witness who prepares a report, believes that it may be incomplete or inaccurate without some qualification... then that qualification must be stated in the report.
If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.
An expert witness, who after communicating an opinion to the party engaging him or her (or that party's legal representative), changes his or her opinion on a material matter, then the expert must forthwith provide the engaging party (or that party's legal representative) with a supplementary report, to that effect which must contain such of the information referred to in the above paragraphs as is appropriate.
Where an expert witness is appointed by the Court, the preceding paragraph applies as if the Court were the engaging party.
Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
Most importantly, the key to an expert's evidence is to ensure that they use plain language and apply the following to their reports Clarity, Precision, Brevity, Relevance, Directness and Orderliness.
4. Expert Conferences
An expert witness must abide by any direction of the Court to:
- confer with any other expert witness, and
- endeavour to reach agreement on material matters for expert opinion, and
- provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement.
An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement.
An expert may apply to the court for further directions and the content of the conference between experts will not be referred to at the hearing or trial unless the parties affected have agreed.
5. Challenges for Experts
Expert witnesses face a range of ethical dilemmas and conflicts in their work. A lawyer often seeks narrow and specific expertise, when in some cases that is not always possible and an expert who can consider more general principles must suffice.
Then there are the companion requirements of being thorough and perceptive on the one hand, and impartial and objective on the other. There is a real need to look beyond the obvious, to see the whole situation (as far as this is possible) and to tell it all, without "filtering out" evidence that may not suit the lawyer's case. If a case is weak, early knowledge of this is valuable to the lawyer.
Matters which give rise to expert opinion are often complex, and the formation of robust and reliable technical opinion is not a quick, easy activity. Often, as well as project hours, an element of "calendar time" is required in order to gain a perceptive appreciation of a complex situation. Short time scales mitigate against a full and proper achievement of this.
Where there is a heavy reliance on expert evidence in a case and the evidence of a particular expert is accepted, there is a danger that this can usurp the role of the trier of fact. The courts are well aware of this danger and experts should be alerted to its potential. Judges decide cases, not experts.