Outline
• Elements of a dispute
• Clean file keeping/documentation
• Discovery obligations
• Providing evidence (fact/expert opinion)
• Preparing for being a witness
• What to expect when called as a witness
Elements of a Dispute
• Backwards looking: • What has gone wrong?• Why?• How can it be proved?
• Balance of probabilities: Which party’s version of events is inherently more likely?
• Resolution options:• Settlement (negotiation)• ISO• ADR• Court
Clean File Keeping
• Presume all documents will be seen by third party eyes
• Develop inhouse protocols for:• communications• storage/filing
• Embarrassment factor/reputation
• When issue becomes contentious: privilege claims/settlement offers
Discovery
• Litigation principle: No surprises at hearing
• Discovery obligations:• Tailored/full• Privileged/open• Guidance re search for records• Affidavit re documents disclosed
• Inspection
Providing Evidence
• Fact witness: What has happened
• Expert witness: What is your opinion about what has happened (or hypothetical scenario):
• Eg: Is a misstatement in a life insurance proposal material (s4 Insurance Law Reform Act 1977)
• Expert witnesses are subject to a Code of Conduct contained in the High Court Rules
Providing Evidence – Expert Evidence• The High Court Rules Code of Conduct for Expert Witnesses include the
following requirements:
• Expert witness has an overriding duty to assist the court impartially on relevant matters within the expert’s area of expertise
• Expert witness is not an advocate for the party who engages the witness
• Qualify basis for opinion – any insufficient information
• Essentially: exercise independent and professional judgment
Tips for underwriter’s evidence
• Obtain clear brief: What is the question?• Prepare own opinion/evidence (review High Court Code)• Check provided everything the original underwriter had available
to them – do not speculate• Is the cover part of a bundled package• What did the insured know?• Provide opinion on each separate failure to disclose/misstatement• Review and use the reinsurance guidelines available at time of
original consideration• Precision
Tips for underwriter’s evidence
• Pan Atlantic Insurance Company Ltd v Pine Top Insurance Company - disclosure re claims history:• Original underwriter should review and give evidence:• what induced them to write the particular risk• had they known the true facts at the time would they have declined
to offer terms; or• if altered terms would have been offered, what would those terms
have been • Disclosure and inspection of underwriting files relevant re similar
risks – what would the underwriter have done if true facts known?
• Contemporaneous records of an underwriter’s reasons vital evidence
Preparing for being a witness
• Amat Victoria Curam: Victory loves preparation
• Guidance by counsel, if not ask:• Copy of Claim/Defence• ALL other witnesses briefs • Bundle of Documents• Cross examination practice/preparation• If expert witness: Intel on other expert witnesses and their evidence
Preparing for being a witness
• Cross examination:
• Understand purpose• Weaknesses• How to respond to strategies/techniques• KEEP CALM
• Basics: when/where/what order/contact
• Familiarise yourself with Court
What to expect as a witness
• Sworn in as witness – witness box (Court)
• Usually required to read Brief of Evidence, then:• Clarification questions from counsel leading your evidence• Cross examination• Re-examination questions from counsel• Questions from the Judge• Adjournment while giving evidence: can’t speak with party/counsel for
whom you are appearing
• Expect focus on minutae
Conclusion
• Preparation: Precision: Practice
• What learnings can be identified/adopted
• What was the outcome: read the judgment
• Get it right: Appropriate support from counsel
Top Related