Don't contact the expert witness and why proper instruction processes matter in litigation
I don’t know how many times I’ve said this. If you retain an expert witness in a building, property or insurance case (ie property damage and defect cases) - as the client - don’t go on a flurry of your own and contact the expert witness.
After all, your lawyer is carefully instructing the expert witness to consider certain specific questions which are framed around facts necessary to a particular cause of action or to ascertain a cause of damage - don’t undermine this process!
The proper instruction process
This instruction process is usually through a formal instruction letter and subsequent updated instructions to ensure a clear brief to the expert and independence from influence or the perception of same. In addition, to comply with practice notes of different forums like PNVCAT2 at VCAT.
As a client you should not be contacting the expert witness, short of some necessary administrative reason like allowing them into your home, paying a bill if that is agreed.
Why clients shouldn’t contact expert witnesses
Why? There are so many reasons, here is a few:
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You want to protect client legal privilege. Correspondence between an expert and a client in writing may be admissible.
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You want to keep a proper trail of correspondence between lawyer and expert for the court or tribunal and to assist the expert.
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Above all you want to protect the independence of the witness and their opinion.
The cost vs quality reality check
I know some lawyers will say, ease up Blair, they can have dialogue, but those who allow this to occur, for example to appease the client or minimise costs and efficiency, don’t be surprised when a big long email trail arises between client and expert…and the client doesn’t know or respect the boundaries.
Sure, it saves on costs but here is a CRITICAL reality check:
- If you can’t afford to do a case properly, you probably can’t afford to do it at all.
- Settlement prospects and success define litigation and if you don’t have either - why bother?
Expert evidence is critical to success
In Building, Property and Insurance litigation one of the most critical things, if not the most critical thing is the quality of expert witnesses and their opinion.
Their evidence is critical, their experience and qualifications are paramount and their opinion unblemished and uninfluenced is what can be the difference between your case succeeding or not.
And remember the other side is watching and reading this evidence. Their attitude to settling will also be influenced by same.
And for all those parties who want to influence an expert, and I am more thinking of you - Respondents and Defendants, we know, I mean we know which experts tend to be influenced or ‘mouthpieces’.
In short, pick your expert wisely! Your case depends on it.
This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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