Litigation Process a.. - The Advocates' Society

More documents

Recommendations

Info

- 10 - 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. © 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission of The Advocates' Society.
- 11 - • 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. © 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission of The Advocates' Society.
Page 1 and 2: The Litigation Process and The Role
Page 3 and 4: - 3 - disturbing examples of expert
Page 5 and 6: - 5 - which is likely to be outside
Page 7 and 8: - 7 - There are particular types of
Page 9: - 9 - have gotten over any nerves b
Page 13 and 14: - 13 - evidence of the expert will

Litigation Process a.. - The Advocates' Society

Create successful ePaper yourself

Delete template?

Save as template?