Some
believe that the major preparation for trial by the expert witness is the
expert report. In addition, they believe
that if the report is well structured, there is no other preparation required and
you can simply arrive at court and answer questions. I strongly disagree with these beliefs.
The
role of an expert witness is to provide facts and an expert opinion of the case
at hand. As stated in Practice Note CM 7
(Federal Court of Australia, 2012), an expert witness first and foremost has an
‘overriding duty to assist the Court on matters relevant to the expert’s area
of expertise’. In addition, the expert
witness must not be an advocate for a party when giving testimony and recognise
that their paramount duty is to the Court, not to the person retaining the
expert. If the expert witness is not
properly prepared, they may begin to show bias to the party retaining their
services and provide opinion outside of their area of expertise, resulting in
inadmissible evidence.
From
the case of Makita (Aust) Pty Ltd v Sprowles (2001), we can identify the
following criteria which must be met in order for evidence to be admissible:
- Demonstration of field of specialised knowledge;
- Demonstration of expertise in this field by reason of specified training, study or experience;
- Basing the opinion on witness’s expert knowledge;
- Identifying and providing in some way, the facts observed or assumed by the expert;
- Properly form a foundation for the opinion from the facts; and
- Explaining how the expert’s field applies to the facts to produce the opinion.
In
summary of the above points regarding an expert’s role, obligation to the Court
and admissible evidence, we can draw the following conclusion:
EXPERTS MUST ADEQUATELY PREPARE FOR TRIAL
After
recently participating in a mock trial to experience the life of an expert witness,
I can confirm that preparation is crucial to succeed. The mock trial consisted of providing
evidence in chief and cross-examination.
It was quite a confronting, yet highly beneficial experience. Based on the points that have already been
discussed and my personal experience as an expert witness, for a whole of seven
minutes, I can confirm that preparation is key.
Not only does preparation assist with your court appearance, it will in
turn maintain professional credibility.
The
main issues that I observed during the mock trial were largely in relation to
lack of preparation. I know that I personally
could have prepared better by reviewing the case more in-depth to gain a better
understanding of the facts. There also
seemed to be a vast amount of nerves from all participants, possibly due to the
fact that we were not entirely sure of how to act during a trial. It is one thing to study the theory behind a
trial, but participating is completely different. My advice to participants in future mock
trials and expert witnesses alike is:
- Review the case to gain an in-depth understanding of the facts;
- Understand which areas of the case are outside of our expertise when questioned; and
- Generally calm yourself and fulfil your duty to the Court.
References
Federal
Court of Australia. (2012). Expert Witness in Proceedings of the Federal
Court of Australia. Practice Note CM 7. Retrieved from: http://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/cm7
Makita (Aust) Pty Ltd v Sprowles (2001)
52 NSWLR 705 (Austl).
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