In search of the right expert witness

While it may seem at times that in the world at large there is increasing resistance to facts and expertise, this is not the case in the courts.

In search of the right expert witness

While it may seem at times that in the world at large there is increasing resistance to facts and expertise, this is not the case in the courts. Expert evidence often plays a key role in the ultimate decision made by a trier of fact. It is also one aspect of litigation that is unlikely to decrease in importance, says a former Ontario Court of Appeal judge who headed the comprehensive public inquiry into pediatric forensic pathology in the province, known as the Goudge Inquiry.

“Our world is becoming increasingly complex,” says Stephen Goudge, who retired from the Court of Appeal in 2014. As a result, courts are likely to place greater weight on expert opinion if the central issue involves highly technical or scientific subject matter, he suggests. “That enhances the duty we all have” in ensuring that expert evidence is reliable, says Goudge, who is currently counsel to Paliare Roland Rosenberg Rothstein LLP in Toronto.

The challenge for lawyers on both the plaintiff and defence side is how to make the most effective use of expert evidence, in light of what the Supreme Court has said about this type of testimony in recent years and to guard against the perception that the witness is not seen as a “hired gun.”

The obligations of an expert and the framework for assessing this type of evidence was most recently analyzed in depth by the Supreme Court in its 2015 decision in White Burgess Langille Inman v. Abbott and Haliburton Co.

“Expert opinion evidence can be a key element in the search for truth, but it may also pose special dangers,” wrote Justice Thomas Cromwell in the court’s judgment. Cromwell added that in the 20 years since its decision in R. v. Mohan, the rules around admissibility of expert evidence have been progressively tightened and the gatekeeping role of a trial judge has been enhanced.

The decision in White Burgess reaffirmed the principles set out in Mohan related to this type of testimony, but it stressed that an expert’s first duty is to the court, to provide objective and “non-partisan” evidence. In reference to two judicial inquiries, including the one headed by Goudge, the Supreme Court noted that biased expert evidence can lead to miscarriages of justice.

A trial judge has authority to rule the testimony of an expert to be inadmissible if the threshold requirement of impartiality cannot be met. “Evidence whose value does not justify the risk of confusion, time and expense that may result from its admission” should be screened out, wrote Cromwell.

For cases where expert evidence is likely to play a significant role in the litigation, key decisions need to be made at an early stage, says Bryan McLeese, counsel at Chernos Flaherty Svonkin LLP in Toronto. “When I retain experts, the most important thing to do is to be fast,” the civil litigator says. “You want the best expert, and the more specific the technical expertise, the more likely it is your pool is narrowed right away,” he explains. Also, if an expert’s initial opinion is not favourable to your client’s position, it is better to learn that at as early a stage as possible, he says. “It is much better to find someone who legitimately believes in your position,” says McLeese.

This also could entail looking outside the country, says Robin Reinertson, a partner at Blake Cassels & Graydon LLP in Vancouver. “Canada is a pretty small market. The more specialized the area, the more likely you might have to go outside Canada,” says Reinertson, who specializes in class action defence in product liability and competition litigation.

One important part of the search for the best expert includes not only looking into their expertise but their track record in court. “I always do research to see if their credibility has been called into question,” says McLeese. “If you think the cross-examination could reveal a bias or an agenda, it is safer to find someone else,” he says.

If an expert has testified a number of times previously and usually for the same side in litigation, that could also raise a red flag, says Jeffrey Feiner, a partner at Corman Feiner LLP in Toronto. “It is better for an expert to have acted for both sides [plaintiff and defendant] on occasions, for their own credibility. Otherwise, your shelf life as an expert could be shortened,” says Feiner.

Once an expert has been retained, there is a significant amount of homework for the lawyer to do before any trial — not just on the relevant legal issues but also the technical ones that will be presented to the court. “Lawyers have to skill up pretty quickly,” says Goudge. A strong understanding of the expert evidence is necessary to assist in ensuring that this testimony is in terms that will be understood by the court. “Experts talk their own language, as do lawyers. Making it comprehensible to a lay listener is part of the lawyer’s responsibility,” says Goudge.

At the same time, a witness who appears too expert at testifying could potentially backfire, suggests McLeese. “I tend to err on the side of expertise versus presentation. By the time you get to trial, the expert, in preparing the report, is already part of the way there on presentation,” says McLeese.

Along with putting forth your client’s expert opinion in the most effective light, knowledge of the technical issues is essential to cross-examining the other side’s expert, says Reinertson. “Visual aids and graphic presentations can also be incredibly helpful” in trying to explain complex issues to a court, she says.

At the same time, it is important for lawyers who have done significant preparation for a civil trial to remember that a jury or even a judge is not going to have the same amount of knowledge on the subject. “The concern is, when you take a case to trial, you have been living with these facts for two or three years. The judge has not,” says Feiner.

While the Supreme Court in White Burgess stressed the importance of a judge’s gatekeeper role in keeping out expert testimony that is biased, it added that the threshold for admissibility will normally be met if the witness swears under oath to being impartial. The party then seeking to exclude this evidence must show a “realistic concern” that the expert has a bias.

In the certification stage of class actions, the White Burgess decision has resulted in a very low threshold for admissibility, suggests Reinertson. “We are focusing our experts instead on looking for gaps in the plaintiff’s evidence. We then explain why these gaps are fundamental problems,” she says.

In the two years since the decision was issued by the Supreme Court, there do not appear to be many cases where a judge actually excluded expert testimony altogether. One high-profile exception was in the criminal sphere, in the trial of police officer James Forcillo in the fatal shooting of Sammy Yatim during a July 2013 confrontation on a Toronto streetcar. Superior Court Justice Edward Then would not permit a defence expert to testify that the incident was likely “suicide by cop,” because what was in Yatim’s state of mind was not relevant to whether the officer used reasonable force in shooting the young man. That decision is one of the grounds of appeal filed by the officer in his appeal to be heard later this year.

If it is the rare case where an expert will be precluded from testifying, the White Burgess decision also clarified that a witness is not necessarily biased because of any connection or interest in the litigation.

“It is sometimes hard to find someone who is completely independent. That is the reality of the scientific process and who is funding,” says Reinertson.

In one of the more detailed decisions on these issues since that Supreme Court ruling was issued, Ontario Superior Court justice Paul Perell explained in Wise v. Abbott Laboratories last fall that “impartiality is a question of fact,” to be assessed on a case-by-case basis. “That the proposed expert is paid or has an employment relationship or has a pre-existing relationship with a litigant is something to be examined, but it does not necessarily entail that the witness cannot or will not comply with his duty to the court when giving expert evidence,” wrote Perell.

Even if an expert has any business relationship with your organization, it is vital that you ensure their opinions are impartial, says Dean Scaletta, director, information and litigation at the Manitoba Public Insurance Corporation. Appeals of its decisions on bodily injury compensation are heard by an administrative tribunal. The public agency has a team of health professionals contracted to provide expert reports for these appeals. “We want them to tell us if the appellant has made out her case. We want to know that,” says Scaletta. Otherwise, it would impact their credibility with the appeal tribunal, he says.

Allegations that the other side’s expert is not impartial are not surprising, says Goudge. “Lawyers tend to rush to bias, because it is something they understand,” he says. However, that on its own will not necessarily impeach a witness. “There are other things that can go wrong with expert evidence that have nothing to do with bias,” says Goudge.

Since the inquiry’s report was issued in 2008, Goudge has continued to speak about expert evidence and its role in the courts with members of the legal community. “The desire to continue to improve the way the justice system deals with expert evidence is real. That is something we should celebrate,” he says.

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