Ensuring the relevance of expert evidence: “Someone might have said, duh”

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The comments made by Justice Beach in the recent Abalone Virus class action have highlighted an issue in the  expert evidence realm. Justice Beach criticised the excessive analysis of expert evidence on issues that on closer examination “do not require much expertise, if at all”.[1] This issue is important for both experts and parties in considering the impact of the overuse of expertise on the credibility and utility of expert witnesses in general.

Traditionally expert evidence has been used to unpack technical or obscure questions for the court in particular issues. However, as Australian courts are required to examine increasing areas of law, expert evidence is becoming a necessary and oft used tool of parties to support propositions. While this is not problematic in and of itself, when experts are used in support of obvious propositions which are then disputed by opposing counsel this can result in a loss of credibility and delays in the litigation process. It is a recgonised principle that in determining the necessity of expert evidence one should determine “Whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area”.[2]

In the $82 million class action Abalone, licence holders and divers are suing the state government of Victoria over financial losses suffered from an outbreak of a herpes like virus attributed to the release of effluent by the Southern Ocean Mariculture Pty Ltd and inadequate action taken by the Victorian government to limit the spread of the disease. When expert Dr. Jones was asked if it was reasonable to expect the Victorian government to quarantine the area where the virus originated, the defence objected resulting in criticism from Justice Beach. He suggested disputing propositions that were beyond argument reminded him of “school days when faced with a proposition like that, someone might have said, ‘duh’”.[3]

In ensuring that expert evidence is relevant and necessary Hon Justice McDougall noted that identifying appropriate issues and experts could not be overlooked. In this process, the client should be a part of the process as they understand the real problems and can assess the strengths and weaknesses of an expert. Moreover, selective use of experts is advised with Hon Justice McDougall suggesting, “an ounce of direct evidence is usually worth a pound of expert conjecture”.[4]

This is not to downplay the utility of expert evidence. When selected correctly and given appropriate advice, experts are a necessary addition to the legal process to explain the issues and assist the court in reaching an informed judgement. Indeed, Hon Justice McDougall admits the influence of a reasoned analysis is likely to be persuasive.[5] What it does suggest is that practitioners should take care in selecting and advising experts. To this end, Experts Direct has created a service which assists practitioners in finding the most relevant experts to inform the court to assist with establishing facts, once these areas have been identified.

This article was prepared in conjunction with Susan Flynn.

[1] Jane Lynch, ‘Judge blasts lawyers in abalone case’, The Sydney Morning Herald  (online), 30 September 2013 <http://www.smh.com.au/business/judge-blasts-lawyers-in-abalone-case-20130929-2umfb.html>

[2] R v Bonython (1984) 38 SASR 45

[3] Above n 1

[4] Hon Justice Robert McDougall, ‘Expert Evidence’, (Working Paper), Institute of Arbitrators and Mediators Australia, 13 February 2004

[5] Ibid

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