Bollicking for large law shop over “independent” witness report … Drafting assisted by lawyers … Breach of expert witness code of conduct … Law firm knew in advance what the findings would be … Misleading the court … Max Shanahan files
At issue was the preparation of an expert report for an engaged witness and delivering it to the court as an “independent” opinion.
In a damning judgment delivered by Justice Shaun McElwaine last month, Corrs’ conduct was described as “grossly unsatisfactory”, and the firm was found to have conveyed a “false representation” to the court in respect of the expert witness report.
Corrs was acting for New Aim Pty Ltd, an e-Commerce company, in a claim against three former employees alleged to have breached equitable and statutory obligations by revealing to competitors confidential information about suppliers in China.
A range of witnesses was called for New Aim. Among them were the company’s chief operating officer David Huang; David Fixler a Corrs partner; and our expert witness, author and businesswoman Lindy Chen.
After originally admitting Chen’s (or Corrs’) expert report, McElwaine J ultimately concluded that he should “reject each of the statements of fact and the expression of opinions” contained in the document.
Chen’s report was dated March 8. Attached to her witness statement was an instruction letter from Corrs detailing the scope of the expert opinion dated March 7, and signed by Fixler.
In a timeline described by His Honour as “remarkable”, Chen supposedly completed her entire 60-paragraph report (not including attachments) in the space of 24 hours.
Under cross-examination, Chen attempted to maintain her extraordinary report-writing ability, before folding and admitting that a number of draft reports had bounced between her and Corrs during February and early March, and accepted that she received “comments” from Corrs.
“She was pressed as to whether the solicitors suggested to her that she should make changes to her draft report. To this simple question, she prevaricated and gave unsatisfactory and at times unresponsive answers …”
It emerged that Chen completed a draft report, but a “second version” was “put together” by Corrs IP Associate Sarah Catania – the Lawyers Weekly’s best IP lawyer under 30, who “particularly enjoy[s] working on expert witness evidence.” HH continued:
“Eventually, Ms Chen conceded that she had received emails from Corrs, the effect of which was to suggest that she make changes to her draft report.”
This admission prompted counsel for the respondents to call for, and be granted, production of documents relating to communications between Chen and Corrs, which previously had been denied to them by Fixler on the grounds that “there is no legitimate basis for such a request”.
Fixler was made to eat his words. One email dated March 6 – before the letter of instruction – sent by Catania and CCing Fixler, told Chen that “we are in the process of finalising your statement …”
On March 8, Corrs sent Chen the “independent” expert witness report she was to present to the court.
Elements of Chen’s report bore a “striking similarity” to portions of Huang’s earlier witness statement, leading Justice McElwaine to conclude that those elements “were drafted by the same person, in this case, one or more lawyers from Corrs”.
Ultimately, Chen accepted that “the drafting selectively reproduced portions of her book, favourable to [New Aim’s] case”.
After finding Chen had clearly breached her obligations under the Expert Witness Code of Conduct, His Honour delivered an excoriating dressing-down of “top tier” Corrs’:
“I … find that the conduct engaged in preparing and delivering the report of Ms Chen was misleading … It was wrong in my opinion to state in the letter of March 7 that Ms Chen was instructed to prepare a report in response to the two questions posed in that letter, when the author [Fixler] was plainly aware not only of what the answers would be, but also, as to the form of the opinion and the fact that its expression was the product of drafting by Corrs.
The letter … also conveys the false representation that Ms Chen, as the independent expert, would upon receipt of the instruction set about the task of preparing her report.
The failure to disclose those facts to the solicitors for the respondents and ultimately to the court is most concerning, as it strikes at the very heart of the paramount and overriding duty that an independent expert has to assist the court impartially …”
Selectively drafting an independent report, evading the respondents’ solicitors, and misleading the Federal Court – not a good look for any firm, especially “Law Firm of the Year”.