Are you an ‘expert’ in your domain? Does it matter? Not always. Certainly domain experts add value from shop floor to boardroom (and may even be required by regulators, as in the case of ‘audit committee financial experts’ defined in Rule 407 under Dodd-Frank in the US). For the most part, however, neither businesses nor regulators require the use of ‘experts’ per se. After all, successful enterprises operate as dynamic networks of knowledge, so team intelligence, not certifiable individual expertise, often counts most; even independent advisers, while qualified, may not be certifiable as ‘experts’ in specific domains.

Yet there is one realm in which individual expertise does matter, and that is in litigation, when the courts or litigants call in ‘expert witnesses’. This article will review official legal definitions of ‘expert’ in Australia and Canada, where an expert’s man duty is to the court; as well as the United Kingdom and the United States, where the expert’s main duty is to the litigant. In all four countries, even those that have a special class of attorneys uniquely qualified to plead in court (such as “barristers” in England or their equivalent in some parts of Australia and Canada), it is the courts that have the power to determine who is (or is not) qualified as an expert for the purpose of submitting expert testimony in particular matters.

Australia: Section 79 of the Evidence Act

Under Australia’s Evidence Act of 1995, opinions are not generally considered evidence, but there is an exception to this so-called opinion rule: Section 79 of the Evidence Act states that “If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge”.

Jul-Sep 2016 Issue

National Association of Corporate Directors