Form 12 NOTE TO EXPERT WITNESS If you have

Form 12
NOTE TO EXPERT WITNESS
If you have been approached to act as an expert witness in court proceedings
or asked to prepare an expert’s report for court proceedings, you should be
aware of
x
x
Your Duties to the Court as an Expert Witness; and
The Mandatory Requirements in Expert Reports.
These requirements are prescribed in greater detail in Order 40A of the Rules
of Court. Please check with the person instructing you if you require further
clarification.
Note: Your evidence may be discredited or rejected by the Court if you
do not comply with Order 40A of the Rules of Court.
Your Duties to the Court as an Expert Witness
1. It is the duty of the expert to familiarise himself with
the general duties set out herein before accepting an
appointment to provide an expert report or to give
expert evidence.
2. It is the duty of the expert to assist the Court on matters
within his expertise. This duty is paramount and
overrides any obligation to the person from whom the
expert has received instructions or by whom he is paid.
3. It is the duty of the expert to be independent and
unbiased in the formation of his opinion. In this
context, an expert will be independent if he would give
the same opinion if given the same instructions by the
opposing party.
4. In expressing his opinion, it is the duty of the expert to
consider all relevant and material facts, including those
which might detract from his opinion.
5. The expert should clearly state the literature or any
other materials on which he has relied upon in forming
his opinion and in the case when he is not able to reach
a definite opinion, for example because he has
insufficient information, the extent to which such
opinion may be provisional or qualified by further
information or facts.
6. When the opinion is based upon experiments or joint
inspections, the expert should clearly state the
methodology, results and conclusions of these
experiments and joint inspections and the extent to
which such information has been relied upon for his
opinion.
7. It is the duty of the expert to only confine his opinion
to matters which are material to the dispute between
the parties and to provide opinions in relation only to
matters that lie within his own expertise. An expert
should make it clear when a question or issue falls
outside his expertise.
8. If after producing a report, an expert changes his view
on any material matter, such a change of view should
be communicated to all parties without delay, and
when appropriate, to the Court.
Mandatory Requirements in Expert Reports
You must comply with the mandatory requirements of Order 40A, Rule 3, of
the Rules of Court if you are preparing an expert’s report for purposes of
Court proceedings. To avoid inadvertent non-compliance with Order 40A,
Rule 3, of the Rules of Court your report should follow the following format:
1.
Please state your qualifications – Order 40A, Rule 3(2)(a), of
the Rules of Court.
x Relevant professional or academic qualifications;
x Specific training and experience;
x The number of times you appeared as an expert witness in
litigation proceedings and the number of occasions for
plaintiffs and defendants.
2.
Please state the issues you were asked to consider and the basis
upon which evidence is given - Order 40A, Rule 3(2)(c), of the
Rules of Court.
x
x
x
x
x
3.
4.
What were the complete instructions given to you;
A statement of facts leading to your opinion;
What were the facts known by you to be true;
What were the facts you were instructed to assume;
What were the facts you have assumed.
Please state a one-paragraph summary of your conclusions
reached – Order 40A, Rule 3(2)(f), of the Rules of Court.
If you had to rely on the work of others - Order 40A, Rule
3(2)(b), of the Rules of Court.
x Identify the literature or other material you relied on in
making this report;
x State whether you had the opportunity to verify the report;
x State the identity and qualifications of the author of the
report;
5.
If you are aware of experiments, tests, examinations,
inspections or surveys conducted – Order 40A, Rule 3(2)(d) of
the Rules of Court.
x Identify the person(s) conducting those tests etc;
x State the qualifications of such person(s);
x State whether those tests were conducted under your
instruction or supervision;
x State whether you relied on those tests etc;
x State the extent to which your opinion may be qualified by
inaccuracies or mistakes in such tests etc.
6.
If there is a range of differing opinions amongst experts on the
matters dealt with in your report - Order 40A, Rule 3(2)(e), of
the Rules of Court.
x Summarise the range you consider to be acceptable and the
reasons why;
x Summarise the range you consider unacceptable and the
reasons why.
After completing your report
7.
You must make the following declaration which is
x a statement of belief of correctness of your opinion; and
x a statement that you understand that in giving this report,
your duty is to the Court, and that you have complied with
that duty.
“I confirm that insofar as the facts stated in my report
are within my own knowledge I have made clear they
are and I believe them to be correct, and that the
opinions I have expressed represent my accurate and
complete professional opinion.
I also confirm that in preparing this report, I am
aware that my primary duty is to the Court and not the
person(s) from whom I have received my instructions
or by whom I am paid”.