Revisiting the Role of the Expert Witness

By: V. Ross Morrison

The purpose of expert evidence is to assist the trier of fact in determining a matter in issue (for example, professional malpractice) so that the correct conclusion can be reached. The evidence of the expert must be independent, objective and unbiased. The court expects objectivity on the part of the expert.

Whether an expert is independent or objective has been the subject of rulings by the courts on many occasions.  An expert witness who has been improperly prepared risks his evidence being given no weight or being rejected by the court.

On January 1, 2010 the Rules of Civil Procedure of the Superior Court were amended to provide more direct guidance to legal counsel in the preparation of an expert’s report. The Rules now require that the expert’s report contain the following information:

  1. The instructions which were provided to the expert;
  2. The nature of the opinion being sought from the expert;
  3. The expert’s opinion;
  4. The expert’s reasons for his or her opinion, including
    1. a description of the factual assumptions on which the opinion is based,
    2. a description of any research conducted by the expert that led to the opinion, and
    3. a list of every document relied on by the expert in forming the opinion; and
  5. An acknowledgment, signed by the expert of the expert’s duty to provide opinion evidence that is fair, objective and non-partisan and that is related only to matters within the expert’s area of expertise.

Legal counsel should work closely with the expert to ensure that the expert’s report is prepared in accordance with the above guidelines and thereby will more readily be accepted by the court as the independent, objective and unbiased product of the expert. However, those guidelines alone may not prevent a challenge to the independence and objectivity of the expert’s report on the basis of draft reports, correspondence, e-mails or other communications passing between the expert and the client or legal counsel.

Our long-standing practice in communicating with and preparing the expert witness for trial has been vindicated by a recent decision of the Ontario Court of Appeal wherein the Court rejected “the trial judge’s proclamation that the practice of consultation between counsel and expert witnesses to review draft reports must end” and laid down the following directions for the assistance of legal counsel in dealing with the expert:

  1. It would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports;
  2. Consultation and collaboration between counsel and the expert witness are essential to ensure that the expert witness understands the duties reflected by the Rules of the Court and contained in the signed acknowledgment of the expert’s duty;
  3. Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the Court.It is difficult to see how counsel could perform this role without engaging in communication with the expert as the expert’s report is being prepared.

Accordingly, we continue to counsel our clients to be careful in their direct communications with the expert, to limit such communications to meetings and telephone conversations, as opposed to correspondence and e-mails and that wherever possible, particularly with respect to draft expert reports, to funnel, through legal counsel, such communications to and from the expert. This process will almost certainly ensure full, complete and unrestricted communication with the expert as the expert’s report is being prepared, with far less opportunity for opposing counsel to challenge the integrity of the report by referring to anything other than the substance of the report itself.

For more information on litigation and other dispute resolution matters, contact V. Ross Morrison or Samantha Chapman by phone at (416) 368-0600 or email at vrmorrison@businesslawyers.com or schapman@businesslawyers.com.

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