While the concept hasn’t taken off in Ontario yet, counsel should still consider the possibility of using joint experts in court, according to judges speaking at a recent civil litigation conference.
This route has not been explored as much as many had expected, says Superior Court Justice Michael Brown, as by the time many people have become involved in the process, they have already spent money on their own experts. “Its tough to jointly get one without sort of buying into their result in a way that you may not want in an adversarial system,” he says.
“I don’t think it’s as prevalent as it might otherwise be,” he says.
However, Justice Gertrude Spiegel of the Ontario Superior Court says that while joint experts haven’t been extensively used, this doesn’t mean that counsel shouldn’t start using them.
Joint experts, says Spiegel, could be more effective from an access to justice perspective, in terms of cost.
“When we talk about access to justice . . . one of the things that we have to do is be more effective in how we spend the dollars that are available and I think we have to be innovative,” she says. “There’s no reason why you as counsel . . . shouldn’t consider that as a possibility.”
“From a judge’s point of view, I would sure like to see it done very often,” says Patrick Galligan of the ADR Chambers.
The use of expert evidence, and joint experts in particular is an issue that has been raised by Ontario’s Civil Justice Reform Project, undertaken by former Ontario Associate Chief Justice Coulter Osborne. As potential options for reform, the project is considering requiring parties to retain a single, joint expert, except in cases where there is a compelling reason for separate experts, or alternatively enhancing the pre-trial or trial judge’s power to exclude expert evidence.
Another option would be where opposing parties retain different experts, requiring those experts to consult and prepare a single joint expert report for the court, or specifically identify the matters on which they disagree, according to the project’s mandate.
“I think it’s a great tool to see if one can resolve cases . . . it’s a great aid to a judge, there’s no doubt about it,” says Brown. He adds, however, that the issue of joint experts can open up a lot of problems when it comes to the trial.
Part of the reason, he says, is the complication in terms of a retainer that this can bring up for counsel.
In previous cases, says Spiegel, concerns over using joint experts have centred on whether the parties would be bound by the expert’s report, and questions over whose witness the expert would be.
The rules that emerged from those cases, she says, were “essentially that they would have to both select the expert,” and the expert would not be the witness of either party, but could be cross-examined by both parties.