August EWJ 24 - Flipbook - Page 72
Instructing an Expert Witness:
An Expert’s Perspective
Courts often deal with cases involving evidence that exceed a lay person's understanding. To
ensure the court has a comprehensive understanding of the presented evidence, experts in the
relevant field are often called to act as expert witnesses and assist the court. In both civil and
criminal matters, digital forensics experts are typically required to testify on complex technical
matters where the presentation of digital evidence is pertinent to the case.
In this article, S-RM's Ryan Shields and Katarina Zotovic highlight four considerations
when engaging an expert witness. As vetted members of the Expert Witness Institute, we have
incorporated the experience of our Digital Forensics experts to provide their valuable insights and
perspective on being instructed in an expert witness capacity.
Engaging an expert
Securing a reliable and suitably qualified expert
witness with availability to meet reporting deadlines,
meetings between experts, and trial dates, can be a
daunting task.
Although an expert must possess the requisite
expertise to opine on the particular issues, the availability of evidence in a timely manner is the key factor
enabling the expert to fulfil this duty. Otherwise, the
expert's capacity to provide a reliable opinion on all
the issues agreed upon in the scope of the instruction
will be restricted—a limitation they are obligated to
disclose in their report.
For instance, in digital forensics, the pool of experts
with the requisite qualifications and experience is relatively small. Many experts have their schedules
booked with trial dates for ongoing cases, sometimes
months or even years in advance. Hence, engaging
an expert at the earliest opportunity increases the likelihood of their availability on the agreed trial dates.
Duty to the court
An expert can be appointed as an expert witness by
either party, both parties, or the court itself. Regardless of who appoints the expert witness, the expert’s
overarching obligation is to the court, rather than advocating for any party’s position. Their duty is to remain impartial, independent, and avoid partisanship.
However, early engagement isn't just about securing
availability. It's also crucial to consider the time needed
for evidence collection, preservation, forensic analysis, and the preparation of court-compliant reports.
This process often involves lengthy communications
between counsel and the opposing party to obtain evidence and agree on the scope of analysis. Maximising
the expert's time will, therefore, minimise the risk of
delays to agreed timeframes, including trial dates.
Throughout the presentation of written and oral
testimony, including under cross-examination, an expert witness must maintain their objectivity and independence from either side. While the expert witness
bears a significant responsibility in this regard, it is
equally important for legal counsel to respect the expert's duty and support them in remaining fair and
impartial during the preparation of their report and
oral testimony. This ensures that the expert can
withstand scrutiny under cross-examination when
challenged on their independence.
Defining the scope of the instruction
In the initial meeting between a prospective expert
and the instructing solicitors, it is beneficial to engage
in an open dialogue regarding the case's background
and the expert's instructions. This discussion aids in
determining the expert's suitability for the role and
helps align expectations regarding the potential scope
of the instruction.
When the expertise presented is objective, unbiased
and considers both sides, the expert becomes a key
witness that the court can trust, regardless of which
side instructed the expert.
Once the expert has a clear understanding of the potential instruction, they can advise on the evidence (or
evidential sources) they require for their analysis. This
collaboration between counsel and the expert allows
counsel to leverage the expert's expertise in making
necessary applications to court or drafting letters to
the other side. In cases where another expert has also
been appointed by the other side, it is crucial that the
necessary applications are made to ensure both experts have access to the same evidence.
EXPERT WITNESS JOURNAL
It is important to note that an expert can also be engaged in an advisory capacity. An expert advisor can
assist counsel in their case strategy, cross-examination
preparation, and provide expert advice to counsel
and their clients during the proceedings. In such
cases, the expert advisor’s primary duty is not to the
court but to advise their client effectively. An expert
who is formally engaged as an advisor will not be able
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