Judge excoriates legal firm for ‘potentially tainting’ court evidence from expert

Lawyers warned over getting involved in ‘independent’ expert reports after a judge excoriated top legal firm for potentially tainting evidence.

A judge has excoriated legal firm Corrs Chambers Westgarth for potentially tainting evidence by helping to draft an independent expert report the firm commissioned.

Lawyers have been warned that they cannot “steer the experts they select”, after a judge excoriated legal firm Corrs Chambers Westgarth for potentially tainting evidence by helping to draft an independent expert report the firm commissioned.

In a ruling likely to have major implications for the way in which expert witnesses are used in both civil and criminal cases, Federal Court judge Shaun McElwaine said Corrs’ conduct “strikes at the very heart of the paramount and overriding duty that an independent expert has to assist the court impartially on matters relevant to the area of expertise of the ­witness”.

“This is clearly a case which in my opinion substantially departs from the proper role of lawyers who engage independent experts in legal proceedings,” he said.

The case had been brought by e-commerce company New Aim against three former employees it alleged had revealed confidential information – the identity of its suppliers - to rival traders.

New Aim’s lawyers, Corrs, engaged an expert witness, businesswoman and author Lindy Chen, to prepare a report on ­business practices in China in the e-commerce sector.

Ms Chen received an instruction letter from Corrs on March 8 this year and was able to produce a 16-page expert report the following day, an achievement Justice McElwaine described scathingly as “remarkable”.

Under cross-examination, Ms Chen first claimed she had written the report within 24 hours, then disclosed that she had “a couple of conversations” with Corrs lawyers in the two weeks before she submitted her report. She agreed she had prepared and submitted “two or three” earlier drafts of her report and sent them to Corrs for comment, after which she received comments back from the firm during a video conference.

In cross-examination by lawyers for the employees, Ms Chen was pressed as to whether the solicitors suggested she should make changes to her draft report. “To this simple question, she prevaricated and gave unsatisfactory and at times unresponsive answers … and I began to doubt her independence,” Justice McElwaine said.

Asked who put together a second version of the report following a video conference, Ms Chen replied: “I think it’s [name of a lawyer] from the Corrs.”

Justice McElwaine noted some paragraphs in her report bore “a remarkable similarity” to paragraphs in the witness statement of New Aim chief operating officer David Huang. “I infer that those sentences were drafted by the same person, in this case, one or more lawyers from Corrs,” he said.

“It would appear that most of the report was, at least initially, the product of drafting by the lawyers [for New Aim],”

UNSW law professor Gary Edmond, an expert in the law of evidence, said lawyers should not shape an expert’s opinions or their strength. “Lawyers might strategically select expert witnesses but they can’t steer the experts they select. They can explain, orient and at most faintly suggest. But the slope becomes slippery quickly,” Professor Edmond said.

“You can’t have it both ways. No expert can serve two masters. She can’t be a servant of the court and beholden to the drafting, framing or emphasis imposed (or suggested) by retaining lawyers,” Professor Edmond said. The Law Society of NSW said rules for the preparation of expert reports were an important part of ensuring expert evidence was credible and genuinely independent. “It is open to the courts to refer serious breaches of practice notes and Codes of Conduct to legal profession regulators … if it considers a breach may constitute a disciplinary matter,” a spokesperson said.

A Corrs spokesman said the ­decision was within the appeal ­period and the firm was therefore not in a position to comment.