Preparing a Legal Medicine Expert Witness Report in Australia

Many medical practitioners, and others in allied health professions, are interested in preparing legal medicine reports for the legal profession, to be used in litigation, and seek how to best satisfy this need [1,2]. While there is no absolutely correct formular with which to satisfy this need, there are some mandatory requirements for a report to be accepted by the courts throughout Australia.

This paper has been designed to offer some simple guidelines that may make it easier for the novice to address these needs.

There are some expectations that cannot be ignored when preparing a legal medicine report. The first of these is to critically read the letter of instruction, sent by the instructing lawyer who will usually be a solicitor, within the Australian, particularly New South Wales (NSW) legal system. The letter of instruction should set out in detail what is required and what is expected from the expert witness [3,4]. The actual letter of instruction may have been prepared for the solicitor by Counsel, namely a barrister working in conjunction with the solicitor, in environments where the legal profession is divided into those who appear in court and those who more closely interact with clients [5]. It is not dissimilar to the relationship between general practitioners and specialists in the medical profession [6].

The letter of instruction will set out the case in broad terms, usually with a chronological timeline and, where appropriate, will provide a set of facts or assumptions upon which any questions need to be answered and will define the domain in which the expert is expected to provide specialised input. The first expectation is for the expert who is being asked to respond to the letter of instruction to provide his/her name and to determine if (s)he is a suitable expert with sufficient skill, training and knowledge to satisfy the needs, as set out in the brief [7]. Should that not be the case it is beholden upon the expert to indicate to the instructing lawyer that (s)he is inappropriate for the matter under consideration, to advise the lawyer accordingly and where possible to indicate who would be more suitable.

Having determined that (s)he is an appropriate expert, based on specialised knowledge, skill and training, the next step is to be certain that (s)he fully understands that which is expected of him/her. This may require a teleconference with the instructing lawyer(s), once the expert has fully appreciated the nature of the matter being litigated. This may result in a further letter of instruction, superceding the initial letter of instruction, where the input from the expert has provided additional advice that was not previously available to the lawyer which better encapsulates issues relevant to the case [8,9]. Even if the expert does believe that such additional issues need to be included, it is the role of the lawyer to determine if such inclusion is beneficial to the preparation of the case. The expert may not be au fait with all the details of the case and, once having expressed any concerns to the instructing lawyer, it is the lawyer’s prerogative to either adopt/modify or reject the approach, suggested by the expert to achieve the best outcome for his/her client when prosecuting or defending a case.

Having recognised the reality of a potential teleconference with the instructing lawyer, it is imperative that the expert recognises and acknowledges that (s)he is not responsible, per se, to the instructing lawyer but holds an overarching responsibility and duty to the court for which the expert report is being sought. This is set out in the relevant “Code of Conduct” that applies to the expert witness, within the jurisdiction in which the matter may be heard [10]. It is mandatory that the expert witness, within the body of any submitted report, includes a statement that (s)he has read and is familiar with the appropriate “Code of Conduct” and, in the preparation of the report, has adhered to its dictates [10]. A good letter of instruction will include such information as is mandatory for inclusion in the report to ensure its admissibility.

An expert witness report should only be sought if there are issues that require clarification by the court, that are beyond the common knowledge of the average lay person [11]. The admissibility of expert testimony is determined by the relevant court in which the proceedings are being heard and it is the responsibility of the lawyer to ensure that the chosen expert satisfies such expectation [12]. To fulfil this dictate, the expert must identify him/her-self and provide ample evidence, within his/her report, to substantiate being an expert, based on specialised knowledge, skill and training, to be accepted by the court [10-12]. This entails the provision of a suitable curriculum vitae that demonstrates having acquired the necessary standing, based on these criteria, to be acceptable and hence admissible to the court.

Acknowledging the above cited, mandatory minimum criteria, the preparation of the report is an individual matter that will vary with each expert and his/her personal preferences. It behoves the expert witness to appreciate that lawyers are often time poor and appreciate concise, easy to follow reports that meet expectations without being too verbose but still addressing all the relevant issues [13]. Such reports will include either a copy of the letter of instruction or a summary thereof, plus a summary of the relevant material that was provided by the instructing lawyer. To satisfy this expectation, while still providing the most efficient and digestible report, it has been the author’s practice to include such material in an appendix, attached to the body of the report [2,14]. It is equally important to use proper language, grammar and syntax to enhance the readability of the report [13].

Within the body of the report, it is important to identify the salient issues, to make it clear if the report was prepared solely on the basis of material provided or also included a consultation with the client/patient. Where the latter was the case, it is important to identify the person with whom the consultation took place, his/her demeanour, anyone else who accompanied the principal attendee, punctuality with the timing of the attendance, explanation of the difference between a therapeutic and legal medicine consultation and most important that the attendee has given informed consent to participate in the consultation [2,14]. It is absolutely imperative that a medical expert witness seeks consent before examining a patient as touching without consent amounts to battery and hence common assault or trespass to the person [15].

Where a consultation, with the client/patient, is a fundamental component of the preparation of the expert witness report, it has become the author’s practice to withhold reading the material, supplied by the instructing lawyer, till after taking a full history and completing a full physical examination (following being given consent to do so) to avoid any imputation of preexisting bias [2,14]. It must be appreciated that the expert is expected to provide the court with an unbiased opinion, based on the available evidence, facts and assumptions, having stipulating these in the body of the report. To have read the material, before seeing the patient, acknowledging that the instructing lawyer definitely will be biased, as the role of the lawyer, as opposed to the expert witness, is to achieve a designated outcome, will imposed a pre-existing bias that should be avoided until the expert has formed his/her own opinion and only then read everything that the lawyer has sent, to determine if that opinion is substantiated [2,14]. This may result in the patient/client having to return for a further consultation, should the subsequent reading of the material uncover something that did not emerge during the initial consultation. This too needs to be explained to the patient/client at the time of achieving informed consent but has only happened twice in a long practice, spanning many decades [2,14].

Should the report make reference to any additional scientific literature or informative publications, it is expected that the expert will provide adequate referencing to allow the reader to access this material. It is appropriate to attach a copy of such literature to the report, usually within the material in the appendix to the report [16].

Having set out the history and examination, that resulted either from the consultation or alternatively the interpretation of the documentation, supplied by the instructing lawyer, the expert must then address the questions posed by the lawyer and provide cogent explanation or argument to justify any opinion proffered [11,12]. It is most important that, should the instructing lawyer want additional material considered or included in the resultant report, this should not be the subject of a change to the initial report. This would be equivalent to the expert losing the unbiased mandatory independence, as stipulated in the “Code of Conduct” [11,12]. Any such change must be considered by the expert and if required, and agreed to by the expert, should be the subject of a supplementary report that is transparent and open to scrutiny [17]. The only changes that would be acceptable to allow changing the initial report would be those which are not substantive, such as correcting typographical errors [17].

The only additional considerations, when preparing an expert report, would be pagination, to enhance layout, numbering pages, acknowledging that some experts also number paragraphs or even lines, within the report [18]. This is designed to improve readability, as is the use of headings [18]. The ultimate consideration, when preparing an expert report, to be served as testimony within the legal system, is to offer a comprehensive response to the issues raised by the instructing lawyer and to do so in a constructive manner that allows a lay adjudicator to understand that which was beyond his/her knowledge before reading the submitted report [19]. Once the report is complete, the expert must be satisfied that the content, of the report, represents something that (s)he unequivocally would be prepared to defend, should (s)he be called to testify in court and to be rigorously cross examined [20]. Despite such comment, only a very small percentage of expert witness reports are used in court with the majority used in mediation to avoid the expense of costly court proceedings.

The preparation of an expert legal medicine report, to be used in litigation or mediation, must adhere to mandatory expectations which include: confirming identity and expert status; acknowledge and adherence to the relevant code of conduct; seeking informed consent, should the report require an examination of the patient/client; identifying all the material and processes inherent in the preparation of the report; providing references for any additional material or scientific literature relied upon;  outlining the content of the letter of instruction; defining the questions being asked; and fully justifying any opinions being proffered.

1. Bird S (2014) How to write a medico-legal report. Aust Fam Physician 43: 777–779.
2. Beran RG (2011) Legal medicine – how to prepare a report. Aust Fam Physician 40: 246–248.
3. Hamish (2025) The critical role of a well-drafted letter of instructions in expert witness reports. Posted March 2025.
4. Experts Direct (n.d.) Getting it right – tips for letters of instruction to experts.
5. The Law Society of New South Wales (2017) Working with barristers, 3rd ed. New South Wales: The Law Society of NSW.
6. Sinnamon Lawyers (n.d.) Lawyers vs. solicitor vs. barrister vs. attorney.
7. Young Lawyers, New South Wales (2011) The practitioner’s guide to briefing experts, 1st ed. New South Wales: NSW Young Lawyers.
8. McCabes (n.d.) Expert evidence – the letter of instruction and involvement of lawyers.
9. New Aim Pty Ltd v Leung [2023] FCAFC 67.
10. Uniform Civil Procedure Rules 2005. Schedule 7 – Code of Conduct for Expert Witnesses.
11. Federal Court of Australia (n.d.) Expert evidence & expert witnesses.
12. Evidence Act 1995 (including Part 3.3) and Part 23 of the Federal Court Rules 2011.
13. Moshes Y (2018) Bad legal writing explained and tips for legal writing. Posted 21 March 2018.
14. Beran RG (2024) Provision of expert evidence within the adversarial legal system. Med Law 43: 477-490.
15. Legal Clarity Team (2025) Touching someone without the person’s consent is referred to as what? Posted 15 February 2025.
16. Penders B (2018) Ten simple rules for responsible referencing. PLoS Comput Biol 14: e1006036.
17. Australian Capital Territory (2006) Court Procedures Rules 2006 – Reg 1242.
18. Guidelines for writing an expert witness report. Posted 9 June 2023.
19. Colquhoun A (2023) Full Federal Court provides clarity on expert evidence preparation. Posted 15 June 2023.
20. The Lawyers and Jurists (n.d.) Witnesses testimony.