Land and Resources Tribunal

Guidelines for expert witnesses

Legal practitioners and parties who are not represented by a lawyer should give a copy of the following guidelines to any expert witness they propose to retain for the purpose of giving a report and giving evidence in a proceeding. The guidelines are not intended to address exhaustively all aspects of an expert’s duties.

General duty to the Tribunal

• An expert witness has an overriding duty to assist the Tribunal on matters relevant to the expert’s area of expertise.
• An expert witness is not an advocate for a party.
• An expert witness’s paramount duty is to the Tribunal and not to the person retaining the expert.

The form of the expert evidence

• An expert’s written report should contain an acknowledgment that the expert has received, read and understands these guidelines.
• The report must give details of the expert’s relevant qualifications, and of the literature or other material used in making the report.
• All assumptions made by the expert should be clearly and fully stated.
• The report should identify who carried out any tests, experiments, observations or other research upon which the expert relied in compiling the report, and give details of the qualifications of the person who carried out any such test, experiment, observation or other research.
• Where several opinions are provided in the report, the expert should summarise them.
• The expert should give reasons for each opinion and identify the facts/assumptions upon which the opinion is based.
• At the end of the report the expert should declare that "[the expert] has made all the inquiries which [the expert] believes are desirable and appropriate and that no matters of significance which [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the Tribunal".
• There should be attached to the report, or summarised in it, the following: (i) all instructions (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumptions upon which the report proceeds; and (iii) the documents and other materials which the expert has been instructed to consider.
• If, after exchange of reports or at any other stage, an expert witness changes his or her view on a material matter, having read another expert’s report or for any other reason, the change of view should be communicated in writing (through legal representatives, if any) without delay to each party to whom the expert witness’ report has been provided and, when appropriate, to the Tribunal.
• If an expert’s opinion is not fully researched because the expert considers that insufficient data is available, or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.
• The expert should make it clear when a particular question or issue falls outside his or her field of expertise.
• Where an expert’s report refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter, copies of these must be made available to the opposite party at the same time as the exchange of reports.

Experts’ conference

• If experts retained by the parties meet at the direction of the Tribunal, it would be improper conduct for an expert to be given or to accept instructions not to reach agreement.
• At the conclusion of the experts’ conference, the experts should prepare and sign a short joint statement for the Tribunal which outlines: (i) the outcome of the conference; (ii) the opinions (or facts/assumptions) agreed by the experts; and (iii) the areas of disagreement (if any) and their reasons for being unable to reach agreement. A copy of the statement should be made available to each of the parties.

Gregory J. Koppenol
President
29 August 2000