In a 60-minute episode (with ad breaks) of Law and Order, The Practice or Boston Legal, lawyers build a case, find expert witnesses, and go to trial in what could work out to be a week in the programme’s timeline. But in reality, finding appropriate expert witnesses can take months.
While lay witnesses tend to deliver evidence like dates, timelines, visual identification and general information, expert witnesses step it up a notch. They bring their expertise to the table, providing case-relevant opinions which have the potential to make or break a case.
A small population creates some problems for lawyers who need to call on expert witnesses in New Zealand. How do the witnesses and the counsel who work with, and opposite them, feel about the whole process?
“In many cases, experts are pivotal to a determination of the issues,” says Jonathan Eaton QC of Bridgeside Chambers in Christchurch.
Mr Eaton has appeared as lead counsel in cases of serious fraud, murder and other serious violence, as well as sexual and drug offending.
“There is a real risk that the true value of expert testimony is coloured by the confidence, quality and fluency with which the witness presents. Counsel has the challenging task of exposing true value in expert testimony.”
Forensic accountants can work in many areas but they usually provide evidence on cases involving valuations and investigations on fraud. Their process also involves a very technical process to get key evidence, one that can be very difficult to explain to people without any knowledge on the subject.
A forensic accountant in New Zealand who works as an expert witness – and who will be referred to as ‘Robert B’ (not his real name) – says of an expert’s value in court: “An expert’s opinion, no matter how strong, will be of limited use if it cannot be communicated clearly. [Clarity] is at the forefront of my mind every time I write a report or present evidence.”
Picking an expert
In his article The Demeanour Fallacy  NZ Law Review 575-602, Robert Fisher QC points out that while scientific studies have firmly debunked the general belief that a person can detect whether someone is lying by their demeanour, many long-standing legal methods have been built around this notion.
This means that, in a perfect scenario, an expert should not only be knowledgeable in their subject but also articulate and can handle the pressure of an intense cross-examination with little to no fault. The reality is that this trifecta is hard to find in anyone but seasoned expert witnesses – of which there are few in New Zealand.
“Sometimes it’s a very narrow area and you have to make do with who might be available,” says Graeme Hall, a partner at Buddle Findlay in Auckland.
Mr Hall, who specialises in litigation and dispute resolution, has extensive experience in commercial litigation and experience in the Court of Appeal and Privy Council. He has prepared and cross-examined a wide variety of expert witnesses over his career.
“Certainly in the ideal world, you’re looking at their expertise where evidence is required, but also their experience; have they given expert evidence before? How do they appear in court? And how would they advance the case?”
Lawyers have noted that there generally seems to be a shortage of experts in New Zealand across most fields.
“If it’s a multi-party proceeding where all parties are wanting experts, you find people get conflicted very quickly,” Mr Hall says.
“In competition cases inevitably you need economic experts and they can be very thin on the ground so it’s not uncommon to have to look overseas to find someone who is suitably qualified and not conflicted.”
Jonathan Eaton echoes these observations. “There is a very worrying shortage of experts available in New Zealand across almost all fields of expertise, perhaps other than forensic accounting.”
Mr Eaton says that in one speciality – memory – there is effectively just one expert who is considered the ‘Crown expert’ in New Zealand. He notes that there are only two or three other experts in New Zealand who might be available to the defence.
These shortages can mean that international experts must be brought in and this can place both a financial and time burden on the legal team.
The reluctance of experts to provide evidence.
In March 2013, Dr Emily Henderson, a senior solicitor at Henderson Reeves, and Auckland University lecturer Professor Fred Seymour presented a Law Foundation-assisted research paper which examined the anecdotal accounts of widespread reluctance amongst New Zealand-based experts to provide evidence. Expert Witnesses under examination in the New Zealand Criminal and Family Courts also includes comments by lawyers and judges on their suspicions of bias amongst New Zealand-based experts.
The interviewees worked primarily in the areas of child abuse and sexual assault, but their answers are still representative of the anecdotal accounts observed by experts in other fields.
“Not only are witnesses recruited to a team but they are also subject to often rigorous challenge by the opposing side via cross-examination. Feeling under attack, experts may become defensive and aggressive, and take more extreme positions than they would otherwise adopt,” the report states.
One respondent commented that being an expert witness was “mentally and physically gruelling. It is also stressful to think of your other work which may be left undone.”
Dr Anna Sandiford works for the independent, New Zealand-based witness service, The Forensic Group.
She has given evidence in Britain – where she sometimes gave evidence up to four times a week – and in some high-profile cases here, including presenting at the 2009 retrial of David Bain where she gave evidence on forensic evidence found at the crime scene.
“Cross examination can be a fierce experience; the witness box can feel very lonely and exposed. Giving evidence in New Zealand is more aggressive than in the United Kingdom and I always warn our overseas consultants accordingly,” she says.
Witness preparation is key when they could be facing a barrage of counsel using an antagonistic manner; especially if it’s an open court trial. Our legal system has limited resources to prepare witnesses and the onus of witness preparation falls heavily on the counsel.
“The legal profession has an obligation to facilitate experts,” says Nikki Pender of Wellington firm Franks Ogilvie.
Ms Pender is a senior litigator at the firm and has extensive trial and dispute resolution experience. She also established Legal Empowerment, a company that provides training designed specifically for those who will give evidence in their expert role.
“Experts shouldn’t be going away [from Court] feeling like their self-esteem has been damaged … and the Courts can’t cope with people just refusing to give evidence.”
Ms Pender says independent training also bypasses any questions about counsel coaching their witness and places importance on building up the self-confidence of witnesses.
“Some New Zealanders and Australians lack confidence. We’re not as naturally front-footed as, say, expert witnesses in the US. Enabling people to get to the position where they have confidence in themselves is important.”
With a shortage of New Zealand-based expert witnesses across the board, lawyers in areas where there are fewer experts available have encountered witness bias. This means it is becoming commonplace for litigation parties (usually in the criminal arena) to outsource their experts from the Britain and the United States.
There are other issues, like that of limited exposure to certain kinds of cases. In certain speciality areas, like medicine, it can be difficult to find experts who will question the views of their colleagues, however, a wider problem is repetition.
With both sides having limited access to local experts, they resort to calling on the same experts over and over, and these experts express the same opinions, over and over.
In sensitive cases, like those concerning Sudden Infant Death Syndrome (SIDS) and reliability of memory, lawyers have observed that experts will align themselves with one camp.
“My sense is that with the very small pool of experts available, within any particular field of expertise, in New Zealand there are, in the criminal practice, effectively ‘Crown experts’ and ‘defence experts’,” says Jonathan Eaton.
“A more particular problem arises in cases where the ‘expert’ has been involved in the case from a very early stage, perhaps even before any proceedings have been contemplated.
“I have had far too many experiences of an expert losing objectivity and independence and becoming no more than an advocate for the party by whom they have been called.”
From an independent expert’s point of view, Robert B says “Any expert appearing in Court has to remember that their duty is to the court, not to the lawyer instructing them.”
Dr Sandiford echoes that view: “Independent expert witnesses are there to convey potentially complex issues in lay terms so that the court can understand technical matters. Experts are not, and should not, come across as advocates for their instructing party but, unfortunately, that does occasionally happen and cross-examination should expose bias, which can cast doubt on the value of the expert’s evidence regardless of its importance to a case.
“The prosecution often cannot choose who they get for a particular aspect of a case and lawyers for Crown and defence will know who has a prosecution bias.”
While it can be hard to detach from a sensitive or emotionally-charged case, Schedule 4 of the High Court Code of conduct for expert witnesses states that expert witnesses “…have an overriding duty to assist the court impartially…”.
“I think it’s very important for everybody to recognise that the expert is independent and must be objective,” says Graeme Hall. “I wouldn’t want an expert who was all out advocating my case because they can come across as too partisan.”
Drawing from his own experiences in giving expert evidence as a forensic accountant during valuation and investigation processes, Robert B stresses the importance of not appearing “as an advocate or overly defensive about my opinion”.
On questions regarding cross-examination and partisanship, he says, “I’m not there to advocate, I don’t take it [cross examination] personally. I recognise that they’re doing their job for their client.”
Ultimately, while lawyers can do their best to prepare and inform their expert witnesses, only the expert can put their pre-judgement aside.
Law is a competitive profession. Everyone wants the upper hand for their client. However, this means a unified solution could be some way off.
Part of the conclusion in the 2013 paper by Emily Henderson and Fred Seymour says: “… the concerns expressed to us reflect long-standing issues with the court process and with lawyers.”
Dr Sandiford’s views are similar: “Those who work within it [the system] all the time will be used to it and accept its ups and downs, although everyone has days when they wonder why on earth they chose this job.”
These situations are what can stop a witness from wanting to work in the arena again. If it happens too often, the window of available/willing witnesses will continue to close; and New Zealand is not a hotbed for niche technical subjects.
A tactic that is readily used in England and Wales, and occasionally in the New Zealand criminal cases, is called hot tubbing. The name is very misleading.
Hot tubbing is a process where experts give evidence one after the other, instead of being questioned one at a time, sometimes days apart. It’s more of a group session where the relevant experts from both sides have a ‘discussion’.
From a witness perspective, it’s seen as a more natural way of giving evidence which can ease the nerves of reluctant, or novice, witnesses as they are talking to their peers on a subject that they know. It’s also helpful from a fact-finding standpoint as all the evidence given at one time meaning no long gaps between questioning. However, from a counsel’s perspective, it can prove problematic.
“In some respects, counsel has less control over the witness than they ordinarily would [during hot tubbing],” says Mr Hall.
“Sometimes that, as counsel, gives me some trepidation because you really are just putting the expert out there and letting them just go to it. In those circumstances, it’s really important you know where they sit and what they are likely to say.”
He does concede that “as a process, hot tubbing can be effective and work well”.
The importance of training has already been raised and the results that it can wield are fairly self-explanatory; like with any form of training, it is beneficial to all involved. Practice makes perfect.
However, ultimately, as Dr Sandiford notes, “It’s one of those aspects of the adversarial system: you can go to court as prepared as you think is possible but you just never know how it’s going to go because there are so many other variables over which the expert has no control.”