To lead expert evidence at trial, you must have your expert prepare and share an expert report with the other parties. You can prepare two kinds of expert reports: an ordinary expert report, and a responding report.
- An ordinary expert report sets out the expert’s opinion on a matter
- A responding report is a special kind of report that can be prepared only if the other side gives you an expert report. A responding report will be where an expert explains any problems or concerns with the other side’s expert method
You must serve every other party a copy of an ordinary expert report 84 days (12 weeks) before the start of the trial.
You must serve every other party a copy of any responding report 42 days (six weeks) before the start of the trial.
Once you decide to hire an expert, you must provide a letter instructing the expert. This is a letter that sets out:
- When the matter is going to trial
- When the expert report must be delivered (ask for a draft at least a week before it is due)
- Remember, ordinary reports must be served at least 84 days before trial, and responding reports must be served at least 42 days before trial
- What the expert will be paid
- What information the report is to be based on
- What questions you want to expert to answer
Setting out the information that the report is to be based on is crucially important. As a general rule, experts are not able to give evidence as to the facts of your case. They only explain what conclusions might be drawn from those facts.
This means that you have to prove the facts that the report is based on. In order to be able to do that, you need to be very clear as to what facts the expert assumed to be true. Make sure that you tell your expert to be clear as to what material and assumptions they relied on in coming to their conclusion. You will then have to make sure that those facts are proven on the evidence at trial. For more information on proving your case at trial, see Evidence.
Content of Expert Report
According to Rule 11-6(1) an expert report must set out:
- The expert's name, address and area of expertise
- The expert's qualifications and employment and educational experience in their area of expertise
- The instructions provided to the expert in relation to the proceeding
- The nature of the opinion being sought and the issues in the proceeding to which the opinion relates
- The expert's opinion respecting those issues
- The expert's reasons for their opinion, including
- A description of the factual assumptions on which the opinion is based
- A description of any research conducted by the expert that led them to form the opinion, and
- A list of every document relied on by the expert in forming the opinion
Reviewing the Expert’s Report
Before you serve the expert’s report on the other side, you may (and should) carefully review it. If you do not like the evidence that the expert will give, you are not obliged to serve it. For this reason, you should ask that the expert provide you with a draft at least a week before the report must be served.
You should also make sure that the report followed your instructions. If the expert did not include any of the information listed in Rule 11-6(1) (listed above) you can ask them to prepare a new draft including that information.
You can also proofread the report, and let the expert know if you see any typos, or if any part is unclear. However, be aware that the other side can demand to see the entirety of the expert’s file. This may include directions given by you. If it seems you are “coaching” the expert – that is, telling them what to say – this may hurt the value of their evidence.
When reviewing an expert report, remember it is not your job to tell the expert what to say.