From Adversarial to Inquisitorial the changing landscape for expert evidence following the Civil Procedure Act 2010 Anne Sheehan Introduction The increasing role of case management of civil actions, and the propensity to use expert conferences and joint expert reports in proceedings, creates new challenges for lawyers in obtaining and presenting expert evidence. This paper gives a snap-shot of the recent decisions and examines some of the practical approaches to preparing expert evidence to be the reliable and persuasive in an environment where the Civil Procedure Act 2010 ( the CPA ) has provided the catalyst for new approaches to expert evidence. At the recent Victorian Bar and LIV Joint Conference the cultural change as a consequence of the CPA including the role of expert witnesses was discussed from the perspective of the Judiciary and practitioners 1. The suite of alternative methods available to case manage the delivery of expert evidence and the techniques used in complex class actions were imbued with the common theme that the CPA has effected and will continue to effect the manner in which evidence is presented. The widespread criticism of expert evidence in the common law world is not new. Lord Woolf s comments in his 1995 report, has continued to be quoted including in the Judicial College of Victoria s current on-line manual and in commentary on concurrent evidence procedures 2. Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are in practice hired guns. There is a new breed of litigation hangers-on, whose main expertise is to craft reports which will conceal anything that might be to the disadvantage of their client (Lord Woolf MR, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1995), p183). 1 High Stakes Law in Practice and the Courts Victorian Bar and LIV Joint Conference 17 October 2014. The VicBar Youtube channel will allow public access to the conference from 17 January 2015, https://www.youtube.com/user/victorianbar 2 Judicial College of Victoria Civil Procedure Benchbook, http://www.judicialcollege.vic.edu.au/emanuals/civil/index.htm#44190.htm Downes J Concurrent Expert Evidence in the AAT: the NSW experience A.M.Sheehan 21 November 2014 1
The reforms that followed the Woolf report has included in all jurisdictions the codification of the responsibilities of experts in civil proceedings similar to those set out in Order 44 of the Supreme Court (General Civil Procedure) Rules. The difficulties with expert evidence and the harm that can be caused to the administration of justice is not limited to civil trials. As recently as 1 July 2014 the Supreme Court of Victoria issued a Practice Direction 3 in criminal trials following concerns raised as to the reason a miscarriage of justice that occurred in R v Klamo 4. In writing about that decision Maxwell P said neither the prosecutor nor the trial judge sufficiently understood the scope---or the limits of the evidence that Professor Cordner, an expert for the Crown, had given. Specifically, they did not appreciate that the evidence, which had been given in such careful terms, simply did not permit a conclusion beyond reasonable doubt that the cause of death was an act of the defendant 5. The Director of Public Prosecutions Victoria policy on expert evidence 6 in response requires that a pre-trial conference with the expert to occur, the circumstances of the case to determine whether it is a brief telephone conversation or a comprehensive face to face meeting. The alternative methods of presentation of expert evidence is not new and has been described by presiding judicial officers: the Rares J traces its history in the Federal Court to 1985 7, the Downes J at the AAT to 2000 8, and Lothian Senior Member at VCAT in building disputes to 2009 9. The spread of these methods to other Courts in Victoria is occurring at a time where there is growing judicial emphasis upon the overarching obligations in CPA. Utilisation of joint reports and concurrent evidence in Court is a departure from the usual adversarial method where the evidence elicited is controlled by counsel examining or crossexamining. The shift to peer discussions, provision of a joint report and concurrent evidence and the control by the presiding judicial officer provides an inquisitorial approach within the overall framework of an adversarial trial. The cases discussed below provide a snapshot of the current issues. 3 Practice Note No 2 of 2014 Expert Evidence in Criminal Trials : http://www.supremecourt.vic.gov.au/home/law+and+practice/rules+and+practice+notes/pract ice+note+no+2+of+2014+expert+evidence+in+criminal+trials#sthash.r3lsefww.dpuf 4 (2008) 18 VR 644. 5 Maxwell R v Klamo: and example of miscommunication and misunderstanding of expert evidence where the conviction was later overturned (2014) 46(1) Australian Journal of Forensic Sciences 4-6. 6 www.opp.vic.gov.au/getattachment/caf852e7.../41-expert-evidence.aspx 7 Rares J Using the hot tub How concurrent expert evidence aids understanding issues [2010] FedJSchol 20 at [19] 8 Downes J Concurrent Expert Evidence in the AAT: the NSW experience 9 Lothian: Concurrent evidence in building disputes as a type of problem solving hearing published on http://www.aija.org.au A.M.Sheehan 21 November 2014 2
Kilmore East and the Murrindindi Black Saturday bushfires rulings The Rulings in Matthews v SPI Electricity cover numerous issues with respect to expert evidence which will no doubt result in a book! The J Forrest J and practitioners in the litigation have commented that the success of the leading of expert evidence in that case was contributed to by the extent of case management, the involvement of Associate Justice Zammit in managing the expert conclaves, and the cooperation of the parties 10. No doubt the lessons learnt in complex class actions will be applied with modifications to litigation in the Courts. Two Rulings of particular note are a decision of Derham AsJ 11 with respect to circumstances in which disclosure and reliance on expert reports at conclaves also waived privilege in documents underpinning those reports and a decision of J Forrest J 12 allowing the recalling and cross-examination of an expert following his evidence in a concurrent evidence session. Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd 2014 VSCA 3 The majority of the Court of Appeal, Tate JA, and Whelan JA found that a jury verdict for the Defendant was vitiated by a final address by the Defendant s Counsel that included an allegation that the Plaintiff s lawyers had attempted to persuade an expert witness to alter his record of the version of events provided to him directly by the Plaintiff. A critical issue in the case was alleged inconsistencies in the evidence of the Plaintiff with respect to the circumstances of the claimed accident. Whelan AJ (Tate AJ agreeing) said in relation to the requirements pursuant to the expert s code of conduct: In itself, there is nothing wrong with an expert being asked to alter the facts that he or she should assume in giving their opinions. In Phosphate Cooperative Co v Shears, Brooking J (as he then was), in the course of what can fairly be described as scathing criticism of the process of the preparation of an expert report in that case, said: It is one thing to submit to a client or third person acting on behalf of a client a draft of that part of a report which reviews the facts. This may well be perfectly proper and perfectly safe and, indeed, desirable, but to submit a draft of argumentative matter or of reasoning is, I think, asking for trouble. Brooking J went on to observe: The guiding principle must be that care should be taken to avoid any communication which may undermine, or appear to undermine, the 10 Class Actions The way of the future, Hon Justice Jack Forrest, Hon Justice Jonathan Beach, Ross Ray QC, Wendy Harris QC, Nicole Wearne, Ken Adams, Brooke Dellavedova High Stakes Law in Practice and the Courts 17 October 2014 The VicBar Youtube channel will allow public access to the conference from 17 January 2015, https://www.youtube.com/user/victorianbar 11 Matthews v SPI Electricity [2013] VSC 33 12 Matthews v SPI Electricity [2014] VSC 82 A.M.Sheehan 21 November 2014 3
independence of the expert. Leaving aside the more general issue as to whether the nature of the communications between senior counsel for the plaintiff and Mr Dohrmann did undermine, or appear to undermine, the independence of the expert, mere instructions to an expert to change the assumed facts is not, without more, something which is wrong or improper. Consistently with basic honesty and with the expert code of conduct, those instructions have to be revealed in any report produced as a consequence. Of course, if the expert is not being instructed to alter assumed facts but rather is being instructed to alter his evidence as to what he had been told at a particular interview, that is an entirely different matter. That would be a serious interference with the administration of justice, as counsel for the plaintiff on the appeal submitted. Before the trial judge, senior counsel for the school initially sought to justify what he had said by asserting that this is what had happened, or what had been attempted, but it seems to me that he then resiled from that and asserted other wrong doing or inappropriate conduct, the second and third justifications. At [208]-[210] In dissent Warren CJ addressed the CPA considerations as follows: The CPA obliges this Court to give effect to its overarching purpose, which is to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute. Recently this Court discussed the effect of the CPA in Yara Australia Pty Ltd & Ors v Oswal. The Court (Redlich and Priest JJA and Macaulay AJA) noted that the CPA had significantly changed the traditional obligations that practitioners and the Court had in relation to civil litigation, observing: Sackville J, writing extra-judicially, referred to the misconception that specific legislative intervention is unnecessary, since the rules or the inherent powers of the court confer ample authority on the judges to manage litigation in a manner that minimises delays and ensures that costs are proportionate to the matters in dispute, concluding that such a view underestimates the significance of legislation. The Act creates obligations which extend beyond those in the Rules and confers upon the courts a panoply of powers not found in the Rules. The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account. The application of the principles governing civil juries in cases such as Baulch and Rees v Bailey Aluminium are now qualified by the overarching obligations imposed on parties and the Court under the CPA. These obligations must be factored into the weighing up of how and where the interests of justice lie, including in civil jury matters. Here, the steps taken and the forensic decisions made by the appellant through her counsel played a significant role in the present dispute. Whilst these things are not clear cut, in the overall assessment of the interests of justice, the forensic decisions of the A.M.Sheehan 21 November 2014 4
appellant are a factor that must be considered. In my view it is a factor in this case that supports the trial judge s decision not to discharge the jury and instead to charge as his Honour did. At [35]-[36] Eaton v ISS Catering Pty Ltd & Ors [2013] VSCA 361 In another appeal from a jury verdict, where the trial judge refused to grant an adjournment to allow an expert to conduct a wet and dry slip test the Court of Appeal comprising Neave JA, Hargrave and Dixon AJJA, unanimously upheld the trial judge s rulings. The doubtful relevance of evidence of a test conducted 5 years after the event and the importance of adhence to case management timetables were critical issues in the Court of Appeals judgment. Assuming that the jury accepted the appellant s evidence that the state of the driveway when she slipped did not differ substantially from its state at the time of the trial, expert evidence about the state of the driveway would have added little if anything to her case. His Honour correctly concluded that the wet and dry slip test conducted in an outside area exposed to the weather for five years since the appellant s injury would have little if any probative value. In our view his Honour did not err in taking account of the very limited probative value that the expert report was likely to have, when he balanced the factors which must be considered under the Civil Procedure Act 2010. At [44] In the past, appellate courts more readily accepted that an adjournment should be granted if its refusal would prevent a party making out his or her case. That predisposition must now be qualified in light of the importance which is now accorded to case management principles, following the High Court s decision in AON, the subsequent enactment of the Civil Procedure Act 2010, and the further authorities mentioned below. Although the overarching purpose of the Act and the rules includes the fair and just resolution of disputes, it also includes the efficient and timely resolution of disputes. So parties cannot casually ignore case management orders or directions. At [47] The letter from the third respondent s solicitors put the appellant s solicitors on notice that they should apply for an extension of time, prior to the trial date. The only explanation put forward by the appellant for not doing so was given from the Bar table to the effect that a decision was made to defer seeking expert evidence until after the mediation. The fact that the parties sought to mediate the dispute did not relieve the appellant s solicitors from the responsibility of complying with Court ordered time limits. The conduct of the appellant s solicitors in ignoring the Court s directions as to the time for serving expert evidence undermines the overarching purpose under the Civil Procedure Act 2010 and is contrary to the overarching obligations to which the solicitors were subject. The obvious purpose of the expert evidence direction was to further the overarching purpose by, among other things, ensuring that the mediation would be fully informed; and thus increase the prospects that it might lead to a settlement with consequent saving of costs to the parties and preservation of scarce judicial resources. Of course, the expert evidence directions were also designed to further the overarching A.M.Sheehan 21 November 2014 5
purpose by ensuring that due notice of the evidence was given to the respondents so that they could have a reasonable opportunity to meet it at trial. At [54] If there is a perception among plaintiffs lawyers in personal injuries litigation that they need not comply with court directions which require steps to be taken before mediation, including seeking expert reports, or a practice of not doing so, such a practice is in our opinion contrary to the overarching obligations. It is no excuse that no win, no fee lawyers wish to see whether a case settles at mediation before spending the necessary funds required to comply with court orders. Although each case must, of course, depend upon its own facts and circumstances, the adoption of such a practice may well lead to an application to vacate the trial date or, as here, to adjourn the trial being refused. At [55] The NSW Supreme Court trial experience The learned authors Dr Ian Freckelton & Mr. Hugh Selby 13, cite examples of concurrent evidence been given by medical experts. In Halverson v Dobler [2006] NSWSC 1307 McClellan CJ at CL determined 14 a lengthy medical negligence claim using the concurrent evidence technique. His comments upon the cardiologists were: Each cardiologist prepared at least one written report and they met prior to giving their evidence in order to refine the issues falling within their areas of experience. They gave evidence concurrently, Professor Saul participating by way of video link. This process proved both highly productive and efficient and has been of great benefit to me in resolving this case. The discussion was sustained at a high level of objectivity by all participants, each of whom displayed a genuine endeavour to assist the court to resolve the problems. The fact that ultimately they disagreed on critical issues was not due to anything other than a genuine difference of opinion about the appropriate conclusion to be drawn from the known facts. At [101] In Huseyin v Qantas Airways [2010] NSWSC 372 Fullerton J was determining a damages claim where liability was admitted and the controversy was whether the Plaintiff was suffering fibromyalgia. Her Honour commented upon the failure of the parties to comply with case management: While the fact that Dr Dryson s report was not served is explicable, what is neither explicable nor acceptable is the failure of the parties to schedule a joint conference of the experts in accordance with orders made by the Registrar in May 2009 with a view to the experts preparing a joint report and giving their evidence concurrently in the proceedings. It was obvious from the service of the balance of the experts reports that there were contentious 13 Expert Evidence Law, Practice, Procedure and Advocacy (Lawbook Co 2013) at 396 14 The decision was affirmed upon appeal Dobler v Halverson (2007) 70 NSWLR 151: [2007] NSWCA 335 A.M.Sheehan 21 November 2014 6
issues of causation, and divergent views about diagnosis, in which case every effort should have been made to facilitate that process. In the result both Dr Bertouch and Dr Dryson gave evidence in the proceedings separately and were cross-examined without any of the defendant s experts having the opportunity to hear them give their evidence or to engage in a meaningful dialogue on the question as to whether fibromyalgia was an available diagnosis. It also deprived the Court of the considerable advantage in having the experts give their evidence concurrently, an approach which is designed to assist in identifying, with precision, those matters about which the experts are ultimately agreed (or about which there is no relevant conflict) as well as isolating the extent of any disagreement between them and the reasons for it. Given the discursive nature of some of the experts reports (particularly the defendant s experts who furnished reports in 2008 and 2009), I am of the firm view that the failure of the parties to comply with the orders of the Court has made resolution of the issues of causation and prognosis in this case unnecessarily burdensome. At [27] CPA and presentation of evidence The final and most recent judgment of the Court of Appeal does not raise the issue of expert evidence directly but raises again the breath of the obligations upon practitioners under the CPA which is relevant to expert evidence. Chief Justice Warren, with whom Ashley and Whelan JJA concurred in Davies v Nilsen [2014] VSCA 278 (7 November 2014) said: I have been somewhat critical of the judge for failing to take a whole of evidence approach to resolving the causation issues. In fairness to his Honour, I should say that the task which he was set was not easy. Rather than his Honour being assisted by a focused analysis, a chronology and narrative of the injuries, he was given a volume of reports and left to the task. In some respects the applicant presented the matter in the same way in this Court. For instance, obvious inaccuracies and deficiencies in particular material were left to the Court to identify. This is less than satisfactory. It was a tedious task for his Honour and it has been a tedious task for this Court, to traverse some 18 years of medical histories, findings and opinions with limited assistance. Although the matter was not raised in argument, it seems to me that applicants under the legislation are subject to the obligations under the Civil Procedure Act 2010. As part of the mandatory over-arching obligations under the Civil Procedure Act applicants are bound to present their evidence to the Court in a comprehensive and comprehensible manner. In any event, for the reasons explained scrutiny of the evidence before his Honour means that on the application of correct principle the judgment cannot stand. At [107] A.M.Sheehan 21 November 2014 7
Lessons from the dicta above The message from the Court of Appeal is clear- that case management and the CPA have raised expectations of the manner that expert evidence will be presented and it will not be a one size fits all solution. The case management of the Courts at all levels will play an increasing role in determining how expert evidence is delivered. Regardless of forum or the method of presenting expert evidence preparation is critical. Understanding the nuances of expert evidence is not always clear-cut and conferences with experts whilst vital will not in most cases attract privilege. Practitioners, and expert witnesses will be held to each of their over arching obligations in the CPA and the Expert Witness Code of Conduct. Practical suggestions as to the preparation of expert evidence Presenting expert evidence in a comprehensive and comprehensible manner requires a very clear front end analysis and a case plan. It is of necessity fact, forum and jurisdiction specific. It must also be limited by the financial resources of the client and their entitlement to access to the justice system. In the following paragraphs are a number of suggestions as to issues you may need to consider. They are suggestions, process for the sake of process should not occur and offends the overarching obligation to only take steps to resolve or determine the dispute. For a complex case, or when a novel issue is being raised in a test case, consider engaging an expert to advise but not to give evidence. That advice remains privileged and can assist in numerous ways, including evaluating the data that goes with the letter of instructions to the expert who will be called as a witness. It may also assist to analysis what evidence is needed which can be lead other than by an expert. Not all cases require an expert to give evidence; expert advice may be useful in determining what additional lay evidence is necessary to prove/disprove the case. Assess who is the correct expert for your case. The area of expertise of the witness begs the question whether you need a generalist or a person with specific expertise within a sub-set of their profession. Consider whether it is a case that requires an experienced witness of a fresh approach. If it is possible that your expert will give evidence in conclave, how effective a communicator will they be in that setting? Examine critically the facts you ask your expert to assume, or the facts as found by that expert. Assumed facts should be prepared with a focused analysis and where appropriate a chronology. A.M.Sheehan 21 November 2014 8
Use language and provide data in a manner that makes clear that an expert witness is impartial, not an advocate for your client. Assume your letter of instructions and attached data will be discovered. Request from any party who has commissioned an expert report a copy of their letter of instructions and attached data. Note that the CPA requires that the parties cooperate. Repeat the critical analysis you undertook of your own expert s report of the opposing parties expert report and the data upon which it is based. The existence or otherwise of primary facts is critical in whatever setting the expert evidence is given, whether by a joint report, or concurrent evidence or in traditional cross-examination. Where primary facts have changed since your letter of instruction for any reason, reassess what evidence you need to lead to establish those facts. Keep your own electronic libraries of evidence likely to reoccur. Clearly the Courts are moving to paperless trials; evidence stored now in a format accessible and searchable in this case and the next saves time and money. Require that your opponent fulfills their overarching obligation, to cooperate, to narrow the issues in dispute, to ensure costs are reasonable and proportionate and to disclose the existence of documents. Choose the right expert for the right case and prepare that expert for the manner in which their evidence will be presented. There are many stages above where the advice of counsel may be sought; by this stage of the proceedings a conference is critical. Revisit Form 44A, or the code used in the jurisdiction you are operating in. It is remarkable the number of occasions an expert witnesses when cross-examined agree that they read the Code of Conduct prior to writing their report then is taken by surprise by questions directed to its precise contents. The code is a helpful document to refresh yourself when you are reading your expert report and that of the other parties expert. Attached for your reference are Form 44A from the Supreme Court Rules and CPA s 65H. The flexibility in the CPA of how expert evidence with be presented reinforces the need for focused preparation in all cases where expert evidence is required. I trust that the suggestions above are of assistance to you in undertaking that preparation. A.M.Sheehan 21 November 2014 9
Rule 44.01 FORM 44A EXPERT WITNESS CODE OF CONDUCT 1. A person engaged as an expert witness has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness. 2. An expert witness is not an advocate for a party. 3. Every report prepared by an expert witness for the use of the Court shall state the opinion or opinions of the expert and shall state, specify or provide (a) the name and address of the expert; (b) an acknowledgement that the expert has read this code and agrees to be bound by it; (c) the qualifications of the expert to prepare the report; (d) the facts, matters and assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed); (e) (i) the reasons for, (ii) any literature or other materials utilised in support of, (iii) a summary of each such opinion; (f) (if applicable) that a particular question, issue or matter falls outside the expert's field of expertise; (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications; (h) a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (i) (j) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; and whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason. 4. Where an expert witness has provided to a party (or that party's legal representative) a report for the use of the Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party's legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i) and (j) of clause 3 of this code and, if applicable, paragraph (f) of that clause. 5. If directed to do so by the Court, an expert witness shall (a) confer with any other expert witness; and (b) provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing. A.M.Sheehan 21 November 2014 10
6. Each expert witness shall exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement. A.M.Sheehan 21 November 2014 11
CIVIL PROCEDURE ACT 2010 65H Court may give directions in relation to expert evidence (1) A court may give any directions it considers appropriate in relation to expert evidence in a proceeding. (2) A direction under subsection (1) may include, but is not limited to- (a) the preparation of an expert s report; (b) the time for service of an expert s report; (c) limiting expert evidence to specified issues; (d) providing that expert evidence may not be adduced on specified issues; (e) limiting the number of expert witnesses who may be called to give evidence on a specified issue; (f) providing for the appointment of- (i) single joint experts; or (ii) court appointed experts; (g) any other direction that may assist an expert witness in the exercise of his or her functions as an expert witness in the proceeding. (3) A direction under subsection (1) may be given at any time in a proceeding. A.M.Sheehan 21 November 2014 12