QUITE often professionals are requested to provide an opinion on scientific or technical matters for the purposes of court proceedings. The more commonly solicited experts are engineers, surveyors, doctors, scientists, actuaries, accountants and economists.
Experts in court proceedings are required to prepare a written statement of opinion to the court which usually takes the form of a witness statement. Further, an expert needs to understand that he may be required to attend trial. Usually, an expert can expect to receive proper notice of this because trial dates are fixed long in advance. Sometimes, however, the expert is unable to attend for good reason and the courts will try to ensure that the expert’s diary is taken into account and that he can attend at a convenient time.Some experts require witness summonses to be served to secure attendance. In a fairly recent case an expert was successful in setting aside a witness summons where a party wished to call her as an expert but could no longer afford her fees.The courts have also become more flexible as to the method of delivering expert evidence at trial with the use of video link and telephone, albeit more commonly used in this jurisdiction where the experts are from overseas.An expert should exercise caution in the preparation of his witness statement and the giving of oral evidence since an expert can no longer rely on immunity from suit in respect of the evidence he provides.As recently as 2011, it was held that the immunity from suit for breach of duty enjoyed by expert witnesses in relation to their participation in legal proceedings is abolished. Breach of the duty owed by an expert witness to the client by whom he had been retained should give rise to a remedy. However, the abolition of immunity did not extend to the absolute privilege enjoyed by expert witnesses in respect of claims in defamation.An expert should understand that his overriding duty is to the court, but there are nonetheless duties which an expert owes to his client such as (i) a duty to present his evidence as clearly and persuasively as possible; (ii) a duty to identify clearly the facts on which his opinion depends; (iii) a duty to consider, and be in a position to explain in evidence, how his opinion would be affected if the facts were found to be different from those for which his client contends; and (iv) a duty to explain clearly the process of reasoning by which he supports his opinion.Where there is a range of opinions, the expert in stating his opinions, should summarise the range of opinions and give reasons for his opinion. Although the requirement for an expert to indicate any opinions contrary to his may appear, not to be in the interest of his client, the expert who fails to address honestly any view contrary to his, will readily lose favour with the trial judge, and thus do a disservice to his client.The client, just as much as the court, is entitled to expect advice which is objective, expresses the opinion truly held by the expert, and which, in arriving at that opinion, the expert has been careful not to allow himself to be influenced by the client’s aims in the litigation. If the expert does otherwise, he is likely to lead his client to expensive disaster, and in that event the client would be entitled to bring an action against the expert.Although there are yet to be any local decisions where an expert has been found liable for participation in court proceedings, with the immunity now abolished there is now the possibility of such a finding. Professionals may well wish to consider appropriate indemnity insurance.Maliaca Wong is a Partner at Myers, Fletcher & Gordon and a member of the Firm’s Litigation Department. Maliaca may be contacted at maliaca.wong@mfg.com.jm or through www.myersfletcher.com.This article is for general information purposes only and does not constitute legal advice.HOUSE RULES
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Guidelines for better expert testimony
