Just a couple of weeks ago Senator Julian McGauran called for Professor Graham Burrows, a University of Melbourne psychiatry expert with 40 years experience, to be sacked from his job after he acted as an expert defence witness in the trial of Arthur Freeman.

In the process McGauran raised a series of questions about the role of expert witnesses in the courts.

Under parliamentary privilege Senator McGauran accused Burrows of providing concocted evidence. He says defence lawyers used Professor Burrows as a ”gun for hire” and ”psychiatrist of last resort and one who will sing whatever song the defence wants”.

Despite Burrows’ testimony that the man was mentally ill, Freeman was convicted of murder and sentenced to life in prison for throwing his daughter off the West Gate Bridge.

Coinciding with McGauran’s attack was the recent Supreme Court ruling in England, which overturned the centuries-old doctrine that expert witnesses have immunity from litigation should they provide shoddy evidence.

To come to a sharper judgment about the role of expert witnesses in the legal system, Crikey, of course, went to an expert — we spoke with Professor Gary Edmond, from the Faculty of Law at the University of NSW.

How often would you say expert witnesses are used in trials?

With a lot of this stuff there’s not a lot known about it. It tends to be anecdotal. But experts witnesses are used pretty commonly in trials. It’s hard to know what percentage but there has certainly been been an increase recently. Historically, once upon a time, they weren’t used very often, but now we’re finding that they’re being used quite a bit.

Even when experts aren’t used formally, for example they don’t appear in court, they’re often consulted or engaged. Firms will often seek out experts to stop other people getting access to them and sometimes they’re engaged for opinions on the development of a case or even to work out whether there is a case. Often it’s a case of parties wanting to cover their arses by having some kind of expert.

Why have they become such an important part of the legal system?

It depends on who is hearing the case, when it’s a judge they are probably a little less important. They are important because parties can get access to people who have really detailed information in certain areas and then use that information to support a case.

It also depends on the type and scale of litigation. Minor cases may have no experts, while the bigger cases could have a few or many. The big IP cases can have half a dozen experts and professors from all around the world, while a smaller negligence case may have an expert or no experts.

How do people become expert witnesses? For example, is there some kind of accepted standard of expertise (e.g. 10-plus years’ experience in the field, PHD etc.)?

Basically they become experts by the court conferring that status on them. And that can be a problem in some types of expertise, especially where it’s arguable that a person isn’t sufficiently qualified to be an expert. This is particularly evident in forensic sciences, where sometimes the court will recognise someone as as expert and allow them to express an opinion — which of course most other experts can’t do.

In some jurisdictions the court want to ensure that an expert’s evidence will assist the court, and that an expert is formally qualified or experienced. The court also often wants to know “is there a field that you’re from?”. That’s not a problem when the field is an established one — like medicine, engineering or genetics. Although it can become a problem when it comes to emerging technologies.

What areas of the law are most reliant on expert witnesses?

They are relied upon heavily in the criminal sphere, especially in more serious crimes. In the civil justice system they track the money effectively — where the large value suits are, for example, intellectual property cases and a lot of commercial or business dealings. Experts are expensive, so you’ll see them more often in the higher-value suits.

Do expert witnesses get paid for their testimony?

Mostly yes and this is an issue at one level. In forensic sciences, for example, they are employed by the state and they don’t get paid. This helps them remain impartial or at least appear that way. Sometimes the police will ask a consultant to appear and they’ll be paid. For the defence in criminal cases they’re almost always paid and in civil cases they are pretty much always paid as well. It would be an exceptional case if they weren’t.

Their rates can vary tremendously. They can vary from a couple of hundred dollars an hour to tens of thousands of dollars a day. I heard about eight years ago, there was a case where one American expert was paid $40,000 for one day. Whether that’s true or not, it shows how expensive they can be.

How are expert witnesses “organised”? is there some kind of database? Are there agencies? Would it be fair to call it an industry?

The bigger and more experienced litigators often have really extensive and incredibly valuable lists of experts, where they know what experts will say and the kinds of professional orientations they have.

Smaller firms, who might not have the same experience, they’re often left to the open market to find an expert. That can disadvantage the smaller firms, because they might have to go and look around for an expert that will suit their case, while this will almost never happen to the bigger players.

Universities also have lists of experts available to the courts, which contain academic and non-academic experts.

Can the repeated use of the same experts become problematic?

It certainly can do. I think judges can get jaded by it. One example was a firm who brought the same three experts to an insurance case that they brought in every time before that and this played against them in the judgment.

Some judges are concerned that people call experts where they’re not required. An example of this was the Makita case in NSW, where they brought in an engineer to talk about the physics of a step that someone had slipped on. There they said it was more important to talk about common sense as opposed to the “friction” of the steps and those sorts of things.

However, while I think some people assume that firms are expert shopping, people shouldn’t assume it’s a cynical thing. My sense is the vast majority of experts are doing a straight job. I don’t think they are cynically modifying the opinions to suit the case.

Do you think it’s possible that Australia may one day follow the recent UK ruling? Where expert witnesses can be sued if they stuff up?

There’s no doubt that ruling could come down here. But I don’t think we know the implications of it yet. I don’t want to say too much because I’m not very sure how that will balance out, the pros and cons. But I can’t imagine that it will hurt that much.

Peter Fray

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