Why Australia Should Regulate Expert Witnesses 11

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Wednesday, July 16th, 2014
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Rather than being about juries swayed by Hollywood style antics, building cases are about defects, cracks, delays, and cost of delays and rectification and are presided over by judges, arbitrators or tribunal members who are rarely swayed by captivating rhetoric from charismatic lawyers.

Indeed, some decision makers have a strong aversion to hearing building disputes because the cases are long, documentation intensive and at times emotionally debilitating for a decision maker, particularly if the case is a domestic building dispute where home owners are beset by the trauma of brick and mortar security jeopardy.

This raises the question about who is more important – the lawyer or the expert witness? Given the clinical nature of construction disputes, many would argue the witness is more important as it is he or she who in identifies and quantifies defects and has ‘street cred’ that will shape the outcome. Indeed, flaws or weaknesses in expert witness testimony can prove fatal to a case, and arguably the most important thing an opposing lawyer can do is find and expose these.

Furthermore, parties to disputes often incur damage where ‘hired guns’ exaggerate or understate claims (depending on whom they are acting for) and have testimony exposed under cross examination.

This raises a serious issue. Unlike lawyers or building practitioners, expert witnesses in many jurisdictions are not regulated, are not required to carry insurance for negligence and are not subject to disciplinary oversight – meaning there is no accountability for mistakes which could cost builders or home owners tens of thousands of dollars.

To address this, expert witnesses should be subject to either a new accreditation system backed by statute or an expanded version of current licensing regimes for building practitioners. This would bring professionalism and accountability to the witness fraternity and ensure only those who with suitable qualifications and experience and basic adherence to ethical standards are allowed to practice.

The current lack of accountability cannot go on and the days of builders and consumers losing cases because of inadequately qualified people in this area cannot be allowed to continue. Policy makers must stand up and take action.

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11
  1. RB

    Agreed wholeheartedly Kim, as one who practises in this arena on a regular basis, there are far too many partisan cowboys masquerading as expert witnesses currently, whom do not understand their real responsibilities and inevitably cause real damage to clients when used.

    Perhaps an accreditation scheme arising with the relevant Law Societies might help?

    Perhaps a Jones & Kaney case in Australia might bring home the responsibility experts are entrusted with?

  2. Andrew Heaton Andrew Heaton

    Sounds sensible. I wonder, in order to further discourage these 'hired guns', should there be some kind of upper limit placed on the annual number of cases with regard to which an individual could act as an expert witness (more likely through a voluntary code as opposed to anything legislated)?

  3. CM

    Fully agree!

  4. David Talintyre

    Most expert witnesses are required to observe a code of conduct stipulated by the court but I agree some 'experts' only pay lip service to the contents of such codes. In the absence of self-regulation, it falls to the lawyers and judges to see such codes are enforced.

    A further problem is that many expert witnesses possess expert knowledge but lack the skills to properly communicate it. More should consider obtaining some training in writing reports (particularly joint reports) and how to give oral evidence effectively (particularly concurrently with other experts).

    Given the undoubted correctness of the premise of your post that most construction disputes are won or lost on the expert evidence, this is an area ripe for reform.

  5. John Smolders

    Can't agree more, accreditation is the way forward with individuals who have a sound background in building/construction knowledge.

    Recommend the National Building Professionals Registry (NBPR) a scheme already established to accredit building professionals.

    Industry should also take a leading role to professionalize as well as to only accept accredited professionals.

  6. Anne Paten

    The HIA view is that expert witnesses are not independent. This is accurate. Those regularly employed by recalcitrant builders/surveyors are hired guns, who write their reports according to the dollars paid, these accepted as honest at the quasi-judicial BPB and VCAT. As for owners, they have no idea who they are getting. Some experts are skilled and truly independent, but others work in the industry, their reports biased to support their building buddies. At these Tribunals, 'Rules of Evidence' do not apply! What should be examined in the interest of justice are the facts and the evidence: a building meets the Permit and Plans or not, has proper foundations or not. In most building cases, any 'Opinion' is irrelevant and of no value.

  7. Meredith Cayzer

    Yes it certainly is important to have expert witnesses regulated if there are to be fair outcomes and ensure justice is properly carried out in building cases.

    • Robert Speirs-Ferrari FAIB MMBA MBDA

      Thank you Kim for bringing up such a topic that's rarely discussed. All comments are relevant and if an expert witness can report and give evidence relying on building codes, Australian Standards and the building contract etc etc, as per mentioned by Anne, it becomes very cut and dry. In my view, opinion mainly deal with what is the appropriate methodology to rectify a fault, workmanship quality and industry standards, and estimates of costs for rectifications. Cost estimates can be addressed with quantity surveyors, workmanship etc can include Victorian Commissioner (fair trading) guide to standards and tolerances 2007. And Kim, when it comes to hired-guns, as mentioned they cop it in the box when forced to agree BCA quoted reports.

  8. Mark B. Baer, Esq.

    ‘Hired gun experts’ are the rule, not the exception because of the adversarial nature of litigation, where everyone plays to “win.” I believe that the attorneys who retain such “experts” allow their clients to become positioned by the opinions of such “experts” because they don’t bother telling them the truth. Life, people, families, children, and society are not pawns to be played in the “game” of litigation. There are serious consequences for playing such a “game” and the only ones “winning” are the so-called “experts” and the lawyers who retain them. Such things should not only be regulated, but there should be very serious consequences for both the “experts” and the lawyers who hire them. How about disbarment?

  9. Blaise Alexander

    Expert witnesses should be subject regulation just as other professional practitioners, including building practitioners and lawyers. this would ensure a measure of responsibility and accountability and improve impartiality.

  10. Jarrod Gutsa

    Very interesting article Kim, on a topic that is rarely discussed.

    Some jurisdictions such as the VCAT (the Victorian Civil and Administrative Tribunal) have in built procedures where experts are required to partake in meetings without lawyers. These meetings are known as conclaves of experts and they are designed to narrow issues in dispute, by requiring experts to see if any common ground can be reached without lawyers present.

    It would be very interesting to be a 'fly on the wall' at such a meeting and hear how the 'hired guns' conduct themselves without the presence of lawyers.