- Solicitors can work with an expert to narrow the issues on which the opinion is provided so that the report is directly relevant to the issues in dispute.
- Solicitors can comment on the form of an expert’s draft report to ensure that the reasoning is clear and in admissible form.
- Objectivity and independence of the expert opinion must be maintained.
There is often uncertainty about the extent to which solicitors can comment on an expert’s draft report, or assist with the drafting and the matters which can be raised before the report is finalised.
The role of lawyers in preparing expert reports
In Harrington-Smith v Western Australia (No 7)  FCA 893 Lindgren J stated his impression that in some cases, beyond the writing of an initial letter of instructions to the expert, lawyers left the task of writing reports entirely to the expert, even though the expert could not reasonably be expected to understand the applicable evidentiary requirements. He said that such a course might be followed because of a commendable desire to avoid the suggestion of improper influence. His Honour went on to say however that lawyers should be involved in the writing of reports by experts – not, of course, in relation to the substance of the report, but in relation to its form in order to ensure that the legal tests of admissibility are addressed.
In Jango v Northern Territory of Australia (No 2)  FCA 1004, Sackville J was critical of submissions that parties could rely on ‘discursive expert reports’ prepared without assistance from lawyers. It is the responsibility of the lawyers, not the expert, to ensure that any written report intended to be tendered into evidence is in an appropriate form for that purpose (Gumana v Northern Territory of Australia (2005) 141 FCR 457).
Assisting the expert in finalising a report may require close liaison with the expert. But how far can that involvement go?
Solicitors can work with expert witnesses on the expert’s report:
- so that it is in proper admissible form. It must be shown that the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called). It must be shown that the person put forward as an expert possesses specialised knowledge in that field and that the specialised knowledge is based on the person’s training, study or experience. The opinion tendered must be based on specialised knowledge (Evidence Act 1995 (Cth) s 79);
- by asking the expert to consider any further relevant issues which have not been covered or adequately addressed;
- by discussing with the expert whether the report conveyed the author’s opinions in a comprehensible manner, that the basis of those opinions was properly disclosed and that irrelevant matters were excluded (Queen v Coroner Maria Doogan  ACTSC 74 (Full Court, ACT Supreme Court));
- as it is appropriate to raise with the expert crucial facts, lay evidence or allegations which may not have been mentioned in the expert’s draft, to ensure all relevant matters have been considered. Expert reports must state the facts, matters and assumptions on which the opinion is based.
The solicitor can draw the expert’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true (Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 24.2.3). The opinions in the report must remain those of the expert. Obviously, solicitors cannot tell an expert witness what to say or seek to change their opinion.
The guiding principle must be that care should be taken to avoid any communication which may undermine, or appear to undermine, the independence of the expert (Phosphate Co-operative Co v Shears  VR 665).