PROVISION OF EXPERT EVIDENCE WITHIN THE AUSTRALIAN ADVERSARIAL LEGAL SYSTEM

Abstract

Being an expert, in the Australian adversarial legal system, necessitates meeting a variety of expectations and obligations. The initial hurdle is for the Court to need an expert to clarify a situation, or circumstance, that is not readily intelligible for the average lay person. Once it has been established that an expert is required, it is imperative that the chosen expert operates within his/her expertise, based on his/her knowledge, skills and special training and accepts the overarching responsibility is to the Court, rather than to the instructing lawyer. Each Australian jurisdiction has established a 'Code of Conduct' which stipulates the expert's responsibilities and it is imperative that the expert confirms with the relevant Code and affirms adherence to same. Having confirmed both the need for an expert and his/her suitability, the expert, either in a written report or evidence in person, must confirm that these initial prerequisites have been satisfied, providing a resume and recognition of the mandated Code of Conduct. The expert must attest to being privy to all necessary material, required to reach a reasonable conclusion, to clarify the issues under review. This may be restricted to scrutiny of available documentation or also require possible examination of a patient, depending on the issues being contested. Any report, prepared for the Court, must be of a suitable standard, attesting adherence to the prerequisites and justify conclusions and opinions reached, with the author prepared to be rigorously cross examined, either within the Court or via a report, from an alternative, opposing expert, disputing the conclusions reached and set out in the initial report. Should the matter go to Court, it is imperative that the expert may be required to attend an enclave of experts or present as an individual expert. (S)he must be fully prepared to be cross examined on the opinions reached and feel confident to be able to justify them. This may include being warned that an opposing view will be offered and (s)he must be prepared to consider such alternative and, if this is contrary to his/ her adopted position, be prepared to argue against such proposition, recognising this may be the only opportunity to do so. It is a maxim that, if 'cross examination' ignores the content of the evidentiary material proffered, within the submitted report, and focus solely on the calibre of (s)he who is presenting it, this affirms its veracity as it attacks the messenger, rather than the message. � 2024, William S. Hein & Co., Inc.. All rights reserved.