Litigation Process a.. - The Advocates' Society

The Litigation Process and The Role Of The Expert Witness
R. Paul Steep and Sarit A. Batner, McCarthy Tétrault LLP
The adversarial system which underpins trial practice in Canada is based on the
principle that the truth will emerge if there is a fair contest between plaintiff and defendant
before an impartial trier of fact. Historically, our Rules of Civil Procedure reflected this reality and
provided wide scope for advocacy on behalf of each party. Each party is free to fully contest the
version of facts presented by their opponent. While it is true that rules of evidence restrict
admissible evidence to what is truly relevant and reliable, these rules still leave ample room for
parties to present sharply diverging pictures of the facts at issue in a particular case. The Judge,
or the Jury, is assumed to posses the necessary skill, or common sense, to sort through these
competing versions of fact to discern what really happened.
In the recent past, it has become clear that whatever the merits of the adversarial
system in getting at the truth of a case, it was very poorly suited to presenting and assessing
expert evidence. There were notable failures in the criminal justice system that were directly
attributable to the failure of courts to detect incompetent experts, to properly define expert
qualifications, or to adequately assess the quality of expert testimony, even assuming it was
delivered by a competent and properly qualified expert.
Although expert testimony was only ever admissible where a properly qualified expert
could provide specialized knowledge on a relevant issue that the Court otherwise lacked, expert
testimony too often became another, more subtle form of advocacy. Unsurprisingly, the
adversarial system incented parties to use experts in a way that advanced their particular case.
Armed with impressive qualifications and experience in areas that by definition were outside the
expertise of the Court, it was difficult for Courts to distinguish between what was real knowledge
and expertise from mere speculation or theory. In some circumstances, Courts could not
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distinguish between expert opinions that were demonstrably right from those that were actually
wrong.
Over the past 30 years, the use of experts in our Courts became more prevalent. They
also covered more diverse academic disciplines than ever before. So Courts were called upon
to assess qualifications and testimony very far afield from traditional areas of expert testimony,
like medicine, or engineering. The result was that experts were often permitted to testify even
when the Court had genuine doubts about the qualifications of the expert, the reliability of the
testimony, or it’s utility. There was a tendency to allow the evidence in on the assumption that it
can be dealt with on cross examination or assessed as to weight at a later stage of the trial. 1
However this was a false hope. Expert testimony admitted in this fashion often confused, rather
than clarified, the fact finding mission of the Court. The Court of Appeal has recently pointed out
the pitfalls of such an approach.
“Apart from trial economy, trial judges who fail to properly perform
their gatekeeper function run the risk of having their decisionmaking
function usurped or severely eroded by “expert
generalists” who profess to know something about everything and
who are only too willing to provide the court with a ready-made
solution for any contentious issue that might exist. The problem
with such witnesses is that while they appear knowledgeable and
generally come across well, upon closer scrutiny, their opinions
may well turn out to be little more than concoctions consisting of
guesswork, speculation, commonplace information and junk
science, with a hint of valid science thrown in for good measure.”
Looking back we can see that these gatekeeping failures occurred despite the fact that
the common law permitting the admission of expert testimony always clearly required such
testimony to be, properly qualified, independent and necessary to assist the Court. But there are
1 Johnson v. Milton (Town), 2008 ONCA 440 (CanLII)
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disturbing examples of experts who apparently did not understand their role, believing that they
were actually engaged to support a particular side rather than to assist the Court. 2
“Dr. Smith, for example, claimed to have had little understanding
of his role in court. He told the Goudge Inquiry that “[i]n the very
beginning, when I went to court on the few occasions in the
1980's, I honestly believed it was my role to support the Crown
Attorney. I was there to make a case look good. That’s the way I
felt.”
The Rules of Civil Procedure now impose on experts a direct duty to the Court. Rule
4.01 imposes a duty to:
(a)
(b)
(c)
provide opinion evidence that is fair, objective and non-partisan;
opinion evidence that is only within the expert’s area of expertise, and
other assistance that is reasonably necessary.
These duties prevail over any other obligation that the expert may owe to the party who retained
him or her. So a properly qualified, and instructed, expert should self police with respect to the
opinion he or she renders, before the evidence is ever tendered to a Court.
However the Court’s gatekeeper function is still important. Courts are now armed with
some additional tools to assist them in assessing expert testimony. Expert reports are
essentially standardized. Experts are required to disclose their instructions and the factual
assumptions, and documents 3 , upon which the report is based. Where a range of opinion might
be acceptable, the expert must disclose where in that range his or her own opinion is situated.
All of this is designed to provide transparency and to focus the expert’s attention on the fact that
he or she is performing an independent role where their primary duty is to inform the Court with
respect to some special knowledge they have, but the Court does not.
2 The Changing Role of the Expert Witness, The Hon. Ian Binnie, Supreme Court Law Review, (2010) 49 S.C.L.R.
(2d)
3 Rule 53.03 (2.1)
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The key to developing useful and admissible expert testimony is twofold; true
qualifications and true independence. After the Goudge Inquiry, there is a heightened
awareness of the need to be vigilant in assessing these criteria. Neither one is more important
than the other. Both are essential and counsel must be confident that their chosen expert can
withstand a searching inquiry on each. This includes the extent to which counsel has been
involved in instructing the expert and in the preparation of the report. Counsel’s instructions are
producible and counsel should conduct themselves accordingly. No court is likely to believe that
counsel was completely uninvolved in reviewing drafts and providing comments, though many
advocate this approach. This is a counsel of perfection that is likely to be observed in the
breach. But counsel, like the expert, can police themselves and ensure that any commentary, is
fair and objective and does not lead the expert into any area of advocacy. Any involvement of
counsel must be able to withstand the scrutiny of the trial judge.
For an expert to truly understand his or her role in the trial process would require a legal
education. But there are some basic concepts that are easily summarized which will assist
experts, especially those who have not testified before, in understanding some of the more
technical aspects of giving expert testimony.
The Admissibility of Expert Evidence at Trial
Expert evidence may be tendered at trial as an exception to the rule against hearsay
evidence that confines witnesses to testifying as to matters of fact as opposed to matters of
opinion. The rationale for the exception to the hearsay rule allowing experts to tender opinion
evidence was articulated by Dickson J. in R v. Abbey.
With respect to matters calling for special knowledge, an expert in
the field may draw inferences and state his opinion. An expert’s
function is precisely this: to provide the judge and jury with a
ready-made inference which the judge and jury, due to the
technical nature of the facts, are unable to formulate. An expert’s
opinion is admissible to furnish the Court with scientific information
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which is likely to be outside the experience and knowledge of a
judge or jury. If on the proven facts a judge or jury can form their
own conclusion without help, then the opinion of the expert is
unnecessary. 4
It is therefore only in those cases where the issues to be determined are beyond the scope of
the knowledge expected of laymen that expert evidence will be admissible. The test for the
admissibility of expert evidence was subsequently elaborated upon and refined in R v. Mohan 5 .
The following four criteria must be met before expert evidence will be admitted at trial:
(i)
(ii)
(iii)
relevance;
necessity;
the absence of an exclusionary rule; and
(iv) a properly qualified expert. 6
i) Relevance
To be relevant, expert evidence must be logically probative of a fact in issue. However,
even if the expert evidence is relevant, the trial judge has the discretion to exclude such
evidence where the prejudicial effect of admitting it would outweigh its probative value. 7
When
deciding whether to retain an expert to tender evidence, the trial lawyer should consider whether
the time required to present such evidence would be inordinate in comparison to its evidential
value 8 and, if in the context of a jury trial, whether such evidence is likely to confuse, mislead or
overwhelm the jury. 9
The court is more likely to admit expert evidence where doing so will not
4 R v. Abbey (1982), 138 D.L.R. (3d) 202 at 217. More recently, in R v. D. (D.), [2002] 2 S.C.R. 275, the Supreme
Court of Canada has upheld the cite (?)
5 [1994] 2 S.C.R. 9 [Mohan].
6 Ibid at p. 20.
7 Ibid at p.21.
8 J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2 nd Ed. (Toronto: Butterworths, 1999)
at § 12.34.
9 Ibid.
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confound the trier of fact, unduly complicate the issues, or run the risk of “mystifying” the trier of
fact to the extent that the ability to remain objective is compromised. 10
ii)
Necessity
To meet the requirement of necessity, expert evidence tendered at trial must be deemed
to be “necessary in the sense that it provides information that is likely to be outside the
experience or knowledge of a judge or jury”. 11
In R. D. (D.) 12 the Supreme Court stated that
expert evidence will be deemed necessary in those exceptional cases where the trier of fact is
unable to reach its own conclusion in the absence of assistance from experts with special
knowledge. 13 The courts have excluded expert evidence on the basis that an understanding of
concepts and principles underlying the action did not require expert assistance and where there
existed no specialized and standardized body of conduct to study in the area. 14 Moreover,
where the issue for which expert evidence is sought to be tendered amounts to an opinion on a
legal issue, the courts will not permit the expert to usurp the function of the court. 15 It is
important to bear in mind the “ultimate issue rule”. This rule stipulates that a court cannot admit
evidence which purports to answer the very question which the trier of fact must resolve for
itself. In professional liability cases, therefore, it is never appropriate to ask the expert whether
in her opinion, the defendant was negligent, as this is a finding reserved to the trier of fact.
Rather, the expert should be asked to opine as to the applicable standard of care and whether,
in the particular case, the defendant met that standard.
10 Mohan, supra at note 3, p. 21; Sopinka et. al., supra at note 6, p. 620; R v. Melangri (1992), 73 C.C.C. (3d) 348
(Ont. Gen Div.)
11 Ibid, Mohan at p. 24.
12 [2002] 2 S.C.R. 275.
13 Also see Mayfield v. Mayfield (2001), 18 R.F.L. (5 th ) 328 (Ont. Sup. Ct.) where the court concluded that where it is
not shown that expert evidence is necessary in the sense described above, it will not be admitted as expert
evidence is costly and time consuming.
14 Pente Investment Management Ltd. v. Schneider Corp., [1998] O.J. No. 6387 (Ont. Gen. Div.); the court refused to
admit evidence as to the standard to be applied to the performance of the Board of Directors.
15 Ibid.
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There are particular types of actions where expert evidence will always be necessary to
prove essential elements of the case. For example, in a medical malpractice action, the plaintiff
must essentially always tender expert evidence that is capable of supporting the conclusion
that the defendant physician failed to meet the standard of care, as such matters are by their
very nature beyond the knowledge of the trier of fact. In a medical malpractice case, failure to,
or undue delay in, filing a medical expert report supporting the allegations related to negligence
and/or causation may result in summary judgment against the plaintiff. 16
iii)
Absence of any Exclusionary Rule
Other than the rule against hearsay, expert opinion evidence is subject to the ordinary
rules governing the admissibility of evidence. 17
The fundamental determination that underlies
all exclusionary rules is whether the prejudicial effect of the evidence outweighs its probative
value. It has been stated that “the exclusionary rules likely to be relevant at this stage of the
analysis are rules that are particular to specific types of evidence” such as the inadmissibility of
a polygraph test result. 18
iv)
Properly Qualified Expert
In order for the evidence of an expert to be admissible, the expert must be shown to be
properly qualified by demonstrating that he or she has acquired special or peculiar knowledge
through study or experience in respect of the matters on which he or she intends to testify. 19
It
is imperative to challenge the admissibility of an expert’s evidence on the basis of insufficient
qualifications directly after that expert has recited his qualifications to the court and before his
16 Claus v. Wolfman (1999), 52 O.R. (3d) 673 (Ont. Sup. Ct.), aff’d. (2000) 52 O.R. (3d) 680 (C.A.); Ngo v. Toronto
Western Hospital, [1994] O.J. No. 250, (Ont. Gen. Div.).
17 Niels Ortved, “ The Trial Judge as Gatekeeper: A New Level of Scrutiny for the Introduction of Expert Opinion
Evidence”, Internal Memorandum, McCarthy Tétrault, LLP (May, 1998)[Ortved].
18 Mark J Freiman and Mark L. Berenblut, The Litigator’s Guide to Expert Witnesses, ( Aurora: Canada Law Book,
1997) at 11. As the authors explain, the results of a polygraph test, and the testimony of the person who
administered it, may arguably be necessary and reliable, however, they are “inadmissible because it infringes
the common law rule against he admissibility of evidence presented exclusively to affirm the truthfulness of
another witness”. [Freiman and Berenblut]
19 Mohan, supra at p. 25; Ortved, supra at p. 10; Freiman and Berenblut supra at p. 12.
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substantive testimony is given. If counsel wishing to object on this basis waits until after the
substantive testimony is underway, any lack of qualification, regardless of its extent, will only go
to weight as opposed to admissibility. 20 It is also important to carefully assess the precise area
in which the expert is asking permission to testify. For example, it is important in cases where
the expert is retained to tender evidence with respect to the standard of care in a professional
liability case that the expert be qualified in the same field as that of the defendant.
Qualifications of the Expert
Technical expertise of the expert in the relevant field is essential. It is prudent to seek an
expert who possesses the right balance of education, training and experience. 21
Although an
expert may be highly educated and published, lack of experience in the relevant field may affect
the weight that will be given to his evidence in some cases, particularly those where the issue to
which the expert is testifying is the standard of care in professional liability cases. In such cases,
it is expected that the expert testifying as to the requisite standard of care will be a member of
the defendant’s community of the same experience as the defendant who is able to appreciate
all of the circumstances of the particular case. It is best in professional liability cases to retain an
expert with practical experience comparable to that of the defendant. In other cases, however,
where an expert may be required to tender evidence as to economic or sociological trends, a
highly academic background which an established record of peer reviewed research may be
preferable. It is always prudent to consider the source of the expertise and its practical
relevance to the issues at hand.
It is advisable to retain an expert with some previous experience in a courtroom setting.
The expert will then know what to expect of examination-in-chief and cross-examination and will
20 “Effective Use of Expert Evidence”, The Advocate’s Society London 1996 Courthouse Series, February 1, 1996,
pp. 25-7.
21 Otoway B. Denny Jr. “How to Select an en Expert Witness”, Expert Testimony and the Defence of Litigation,
Donald J, Hirsch Ed., (Chicago: The Defence Research Institute Inc., 1990).
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have gotten over any nerves borne of inexperience. Be especially cautious, however, to avoid
experts who have gained a reputation as a “professional witness”. It is prudent to enquire into
the percentage of the expert’s income comprised of expert witness fees. Although the expert
may not wish to divulge such information, asking experienced colleagues and other persons
practicing in the same field as the potential expert will likely provide a good indication of the
expert’s courtroom experience. It may be inadvisable to retain an expert whose past experience
has been confined solely to testifying for plaintiffs or defendants. They can appear biased from
the outset. If the expert has a reputation for being “plaintiff oriented” for example, opposing
counsel who have researched that record and may be in a position to object to the expert’s
evidence on the basis of bias. Although it may not be likely that the expert’s evidence will be
ruled inadmissible, the appearance of such bias or favourable disposition to one party may
affect the weight that will be given to his evidence, since it places the objectivity of such
evidence into question.
Assisting The Expert in Being An Effective Courtroom Witness
Experts must be qualified and independent, but it is helpful, if not essential, that they
also have effective communication skills. Effective communication skills on the part of an expert
are important throughout the litigation process, especially at the following three stages:
• when educating counsel prior to trial
• when educating the fact-finder during trial; and,
• during cross-examination. 22
The most highly qualified expert will be of little value if that expert lacks the ability to effectively
communicate her opinion in a precise, clear and cogent manner:
22 James H. Seckinger, “Presenting Expert Testimony” Canadian Bar Association Conference, May 1 and 2, 1992,
Advocacy ’92: The Changing Role of the Expert Witness at 39 [Seckinger]; Morrison and Bryant, supra at p.5.
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Although the independence, integrity and strength of the expert’s
opinion is critical, the value of the opinion is diminished if it cannot
be effectively communicated to the fact-finder at trial”. 23
The issue upon which experts are retained to opine are usually complex and often times
technical. It is advisable to remind your expert that the concepts and terminology that are
familiar to him will not be familiar to the trier of fact, and it is best to use plain language and
break down complex and technical concepts into simplified parts.
When preparing an expert for trial, work with the expert to ensure that her testimony is
presented in a sequence with which he or she feels most comfortable. Doing so helps to ensure
that the expert does not become flustered or forget an important point. Although counsel is likely
to catch any missed points, it is often most effective when the information appears to come
naturally as opposed to being coaxed by counsel. Moreover, as with any other witness, the
testimony of the expert will appear more confident if the expert is in his ‘comfort zone’ and this
will affect how credible the expert is perceived to be. During pre-trial preparation of the expert,
ensure that any weaknesses in the expert’s opinion are put to him so that he will not be taken by
surprise by opposing counsel once he is ‘in the box’.
Some tips to ensure that your expert is able to effectively communicate his opinion to the
fact-finder include:
• ensuring that the expert makes eye contact with the trier of fact
rather than the lawyer when giving evidence;
• instructing the expert to use clear, concise and plain language
when discussing complex and technical concepts;
• avoid jargon familiar to the expert and his or her peers but not to the
Court
• having the expert give viva voce evidence in a conversational
manner;
23 Ibid [Seckinger] at 39.
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• allowing the expert to present his evidence in a sequence that is
most comfortable for him; and
• having demonstrative evidence available to the expert. 24
During the pre-trial preparation stage of the action, the expert should be apprised of all the
relevant facts and issues of the case, whether helpful or harmful and whether or not they are
pertinent to his particular evidence. Fully informing your expert of all the relevant facts and
issues will safeguard against the expert being taken by surprise or inadvertently appearing to
lack independence because he avoided unpleasant facts.
The Objective and Independent Expert
The opinion of an expert who lacks independence and objectivity, whether actual or
perceived, will likely be given little weight and in some cases, may be ruled inadmissible. As
noted above, an expert with a reputation amongst lawyers and her peers as always testifying to
one side or another may be perceived as biased to one party over the other and this lack of
objectivity may affect the weight to be given to her testimony. In the pre-trial preparation stages
of the litigation, the expert must conduct an independent examination of the issues at hand. 25
While it may be acceptable for the lawyer to explain the theory of the case that he or she will
pursue, it is ultimately the job of the expert to objectively assess the facts that underlie that
theory and come to his own conclusions based on the available information.
It goes without saying that counsel will seek out an expert that
supports the theory of the client’s case. However, even the
strongest endorsement by an expert of a theory that helps the
client’s case will be wasted if the expert appears to be nothing but
a “gun for hire” – willing to say anything he is paid to say. To that
end, it is important to ensure that there are no personal
circumstances that would render the retainer of the expert
24 The use of demonstrative evidence is discussed further below.
25 Morrison and Bryant, supra note 19 at p. 5. Appendix A contains a list of databases which may be helpful in
locating experts.
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inadvisable, such as the expert having a stake in the client’s
business, or demanding an exorbitant fee to appear. 26
When determining the appropriateness of retaining a particular expert, the lawyer should
enquire into the expert’s background, associations and memberships. The duty of the expert is
to assist the court in its truth finding function and an expert who lacks the requisite objectivity
and impartiality will jeopardize this mandate and imperil his own professional reputation. It is
essential when retaining an expert that the lawyer be aware of the expert’s duties as set down in
Rule 4.01.
Expert evidence has been ruled inadmissible on the basis of bias where the expert
retained has been deeply involved in the litigious matter for a prolonged period of time and has
through this involvement become an ‘advocate’ for the party by which he has been retained. 27
Exorbitant retainer and contingency fees have been found to preclude the expert from being
neutral and objective. 28 Actual bias is not necessary when the independence and objectivity of
the expert is being challenged; the appearance of bias will suffice to affect the weight or
admissibility of expert evidence. Regardless of how unbiased the expert’s conclusions are,
where a reasonable person, informed of the relevant facts might think that the circumstances
may be capable of affecting the expert’s views, the evidence ought not to be admitted. 29
Properly Qualifying Your Expert
Introducing your expert witness to the court is not simply a technical formality. Rather, it
is the key to safeguarding the expert evidence against any challenges by opposing counsel
based on lack of, or insufficient, qualifications. Simply launching directly into the substantive
26 Wright, supra note 1 at p. 237.
27 Ibid.
28 Bank of Montreal v. Citak, [2001] O.J. No. 1096; See also Brampton Vee World Motors Ltd. v. R (2004), 2004
CarswellNat 4951; Schreiber v. R. (2004), 2004 2069, (sub nom. R v. Eurocopter Canada Ltd.) 185 C.C.C. (3d)
233 (S.C.J.) past relationships do not necessarily act as a complete bar to the expert evidence, but may affect
the weight
29 Liverpool Roman Catholic Archdiocese Trustees v. Goldberg (No. 2), [2001] 4 All E.R. 951; “Expert Essentials”
Conference of the Advocates Society (CLE), (February 15, 2005).
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evidence of the expert will provide opposing counsel the opportunity to challenge the
admissibility of the evidence on the basis that no foundation for the expert’s opinion has been
established. An inadequate introduction of the expert may limit the weight given to the expert
evidence. For example, merely introducing an expert as an “accountant” will likely be deficient to
demonstrate the requisite expertise required to render an opinion on complex actuarial issues. 30
It is highly advisable that the expert be qualified in all areas for which the expert will be
rendering her opinion.
It is advisable to have thoroughly reviewed the expert’s curriculum vitae with the expert
prior to trial and to identify any publications, speeches, and practical experiences that are
directly relevant to the issues to which the expert will be opining. The following framework for
qualifying the expert is a useful guide: 31
(a)
identify the expert’s training and experience applicable to the expert’s evidence
(either by asking direct questions or guiding the expert through his curriculum vitae)
making sure to highlight all relevant:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
academic credentials;
posts, if any, which the expert holds;
academic and practical experience;
positions in professional organizations and on committees;
executive positions held within the profession;
professional recognition and honours;
publications written by the expert pertaining to the particular field of
expertise, giving the dates and names of the publisher or publication in
which they appear; and
30 “Dealing with Experts in the Box” a demonstration prepared by Justice Stephan Goudge (Ont. C.A.), Michael
Barrack (McCarthy Tétrault LLP), Ron Dimock (Dimock, Stratoon, Clarizio LLP) and Bob Martin
(Pricewaterhouse Cooper) for The Advocates Society CLE conference “Expert Essentials” (Toronto: February
15, 2005)
31 This list was developed out the Advocates Society’s 2004 “Expert Evidence” program chaired by Barry Leon (Torys
LLP) and Bonnie A. Tough (Tough & Podrebarac LLP) with the assistance of Saro Sarmazian (student-at-law,
Torys LLP).
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(viii) appointments to lectureship. 32
(b)
(c)
(d)
(e)
have the expert provide the contextual framework for the testimony (i.e.: a
description of the investigation or examination that the expert was retained to do);
relate the expert’s expertise to the issues in the case to which the expert will opine;
permit the expert to discuss more fully the material aspects of his curriculum vitae
and guide him through the less material parts; and
advise the expert that modesty is not always a virtue-the expert should be confident
to speak about his experiences and training.
It is important to highlight the most relevant aspects of the expert’s curriculum vitae rather than
canvassing every minute detail. At the time that the expert is qualified before the court, his
curriculum vitae will be entered as an exhibit and the fact finder will have it at its disposal for
reference if need be. The expert’s curriculum vitae should, therefore, contain all the information
about the expert that is pertinent to his qualifications and the issues at hand.
Even if offered the opportunity by opposing counsel, do not forego spending some time
qualifying your expert. It is the first chance you have to introduce him to court, demonstrate his
expertise, and get him comfortable on the stand.
Conclusion
An expert who understands the basic concepts concerning his or her role as an expert
will be of true assistance to the Court. They will not be misled by the adversarial process and
will be able to focus on the task at hand; imparting specialized knowledge on a matter of
relevance in an independent and unbiased manner.
32 Freiman and Berenblut, supra note 16 at p. 37.
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