If you’re briefing experts in court proceedings, or are in the business of giving expert evidence, two really important cases were handed down in the past month.
Collectively the cases run for about 1,400 paragraphs, so I haven’t been able to finish a cash summary for my followers. As I run a busy practice, it may take me a little while.
The key points that I have taken so far:
(1) the engagement letter to your expert is paramount. Instructing an expert to give evidence on what they would do in a circumstance is not what the courts want!! Instead, the question is what (in the expert’s opinion) a reasonable person would have done;
(2) don’t blur the lines of independence and don’t risk it! Liquidators preparing their own insolvency reports come to mind;
(3) instructing an IT person without any accounting experience to source financial records from a company server is probably not the best idea, but if there is no other way, this should be carefully managed by the instructing solicitors;
(4) be clear in the assumptions you want the expert to make; and
(5) sometimes, rather than preparing a contra-report to another expert, it may be better to just get them to act as a shadow expert.
Links:
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca0819#_Ref515633289
https://www.caselaw.nsw.gov.au/decision/5b0e033ee4b087b8baa89856
