December 2018


Witnesses as advocates, not experts

by Kate Tilley, Resolve Editor

Expert witnesses who fail to make concessions are advocates not experts,
barrister Andrew Philp QC told AILA Qld's insurance law intensive.

He and fellow barrister Richard Morton and mechanical engineer Dr Frank Grigg debated ethical challenges for expert witnesses. Mr Morton said unethical behaviour by experts could have "insidious effects" on a case and impact on justice.

Dr Grigg was critical of experts who brought irrelevant information into cases. It was vital experts provided factual or scientific evidence to back their opinions. Mr Morton said reports had to be couched in layman's terms. Dr Grigg agreed, saying he had been criticised for that but always did it deliberately.

Mr Morton agreed "undue complication" was unnecessary and suggested some experts "if they can't get it with science, [will] baffle with bullshit".

He said experts sometimes faced pressure when drafting reports and parties needed to be aware drafts were disclosable. Dr Grigg said he was frequently asked for a verbal report first to enable lawyers to decide if they wanted a written one.

Mr Morton said lawyers could have input into report preparations. "Not in the substance and opinions, but [to ensure the format's] admissability. For a report to be of value, it must be admissable opinion." Experts should not include irrelevant material or go beyond their expertise.

Mr Morton said it was unethical to suggest the evidence a witness should give. "You can't advise [an expert] how to answer a question or rehearse the evidence to maximise the impact."

Mr Philp said 90% of doctors' expert evidence was from experienced practitioners so lawyers needed only to provide a brief with the letter of instruction that detailed "what they want opinions on". He said some doctors were "perceived as being too tough; others give the benefit of the doubt" and others were "middle of the road".

In a separate presentation on mediation, Mr Philp said mediations were "here to stay because governments and courts love them".

"Courts don't like hearing trials and will do anything to stop them. A trial is a moving feast," he said.

Mediations were established to achieve early resolutions and avoid trials. There was now a high percentage of insurance claims that never proceeded to trial.
Mr Philp said preparation was paramount. Mediations started with hearing from the plaintiff. "It can be powerful, provide early warning signs and feedback to know where you are going with the mediation. You find out your choices to advise your insurer client."

It was an opportunity to outline the insurer's strong points to the plaintiff. "They are keen to hear the insurer's perspective so they know why [the claim's] being contested," he said.

"Do it without belligerence, aggression or belittling. Most plaintiffs will understand your reasoning if it's done effectively. Point out any inconsistencies, but don't call then a liar, a fraud or a cheat. They want reasoning not hubris."

Mr Philp said an effective, well-prepared opening statement would mirror risks a plaintiff's lawyer had already pointed out. The mediator could "reality check" the plaintiff by using the defendant's logic to reinforce the risks.

Reality testing was central to the success of mediation. "The mediator is independent and not imposing their assessment. They're a devil's advocate and a sounding board."

Issues of liability, causation and quantum could be tested with the mediator.

Mr Philp said a mediator's bid was a last alternative. "Let the parties negotiate but sometimes the lines are drawn and the mediator knows there's no way either side will make another offer, but they may accept another offer.

"A bid is to push both sides, it's not an assessment of what's fair. Insurers shouldn't be scared of a bid, they can say no, and there's no harm done. If it doesn't work, at least you have tested them."

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Resolve is the official publication of the Australian Insurance Law Association and
the New Zealand Insurance Law Association.