Litigation Process a.. - The Advocates' Society

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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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