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Debating merits of court-appointed experts

The rules of expert evidence are on the table and being scrutinized carefully and thoughtfully.

With successful reforms in place in other common law jurisdictions, the argument to make experts tools of the court rather than of the parties is becoming hard to ignore, particularly when our own system allows adversarial expert opinion to blow legal costs and trial times out of all proportion to the matters at stake.

Peter Griffin of Lenczner Slaght Royce Smith Griffin LLP of Toronto, who is on the board of directors at the Advocates Society, says that a number of reform initiatives are moving ahead across the country.

"British Columbia has just released a further civil justice review, Quebec is looking at it fairly hard, and the Canadian Institute for the Administration of Justice [is] looking at it at a policy level."

The Advocates Society is preparing submissions to the Civil Justice Reform project in Ontario under the guidance of former integrity commissioner Coulter Osborne. It has specifically targeted the increased use of expert evidence in civil cases and the biased approach taken by many of the experts.

The consultation paper for the project lists a number of options for revising the four short parts of rule 53.30 of the Rules of Civil Procedure, many of which echo reforms in the United Kingdom that resulted from the Woolf Report in the mid-1990s.

Most significantly, part 35 of the U.K. Civil Procedure Rules provides that the expert's duty to the court overrides the duty to the client. Judges have the power to direct that there be one expert only. If the parties can't agree on who that will be, the judge can select from a list prepared by the parties, or direct selection in some other manner. The rule also provides for direct pre-trial discussions between experts.

In addition, the Ontario project is seeking comments on a requirement for notification of any proposed challenge to the experts' qualifications, oral or written examination for discovery of experts, and pre-trial hearings dedicated to issues related to expert evidence.

There has been ample time for evaluation of greater judicial control over expert evidence in Britain, and most responses have been positive. Concerns that court cases would become trials by expert, where a single, joint expert would effectively decide the case before it ever reached the court, have not become a reality.

It is clear that judges don't feel bound by the evidence, and often prefer the evidence of the claimant and witnesses over highly qualified and experienced witnesses. The recent case against Sir Roy Meadow, the now notorious "expert" on Munchausen Syndrome by Proxy whose flawed testimony lead to many wrongful criminal convictions, has been salutary.

There are some claims that litigation costs have increased in the U.K. because of the "front-ending" of the process, but the number of claims reaching trial (down 80 per cent in the High Court and 20 per cent in county courts) has been so dramatically reduced that the reforms are considered a great success.

They have already been copied and modified to some extent in other common law jurisdictions.

In Australia, the Federal Court recently introduced a new practice direction saying the paramount duty of the expert is to the court, outlining the information to be given to and received from the expert, and specifying the form of the expert's report. It stopped short of adopting the practice of court-appointed experts, seen by many as an intrusion by the court into the parties' conduct of their own litigation.

The Australian state of Queensland has adopted the use of joint experts, and has come up with some innovations to address the criticisms of the system. In the Sunshine State, joint experts can be appointed before litigation even commences, so that the parties don't appoint their own "shadow" experts in the lead up to litigation and then have to share the cost of the joint expert.

A second joint expert can be appointed by the court where there are areas that the first expert is not familiar with, allowing some genuine differences between experts to be examined.

Closer to home, the British Columbia Civil Justice Reform Working Group issued a report in November 2006 which addresses the issue. It stresses the use of case planning conferences, which will occur immediately after litigation has been initiated and responded to.

The case planning conference judge will have extensive powers to give directions on the number of experts, the issues they must confine themselves to, appointment of single joint experts where appropriate, and the time limits for disclosure of reports and the facts they are based on.

Early case management is one issue Ontario's Advocates Society has been wrestling with in its attempts to come up with options for reform. During its policy forum last March on streamlining Ontario's civil justice reform, it rejected the U.S. model of pre-trial discovery of experts, but approved of expert conferencing prior to trial where there is more than one expert. It also endorsed the use of a single, joint expert where appropriate.

It adopted the ideal that the experts' overriding duty should be to the court and that they should be instructed in a transparent manner.

This consensus gives an indication of the nature of the submissions to be made to the Ontario Civil Reform project.

"We have not solidified anything yet," says Griffin, "except that the reforms will be aimed at taking some of the advocacy out of expert evidence."

He points out that there is a lot of judge-made law dealing with the issue that must be considered. "Courts have not been shy to address the issue. There are many requirements that are not statutory or mandated by the civil rules, but are an expectation that the courts have."

Ivor Gottschalk, of Gottschalk Forensic Accounting & Valuations Inc., confirms that the courts have been introducing their own reforms, including directing the preparation of joint reports.

"So far it has been driven by individuals and judges. The parties can agree to it or the judges will require it. The judge will often ask to be the person who picks the expert, after the parties come up with a few suggestions. That expert's obligation is to the court."

Gottschalk has fulfilled the role of joint expert from time to time and is cautious about its use. "It is a difficult role to fulfil. It creates a lot of issues."

Gottschalk is at the helm of a completely different approach to improving expert evidence. The Canadian Institute of Chartered Accountants has just released standard practices for conducting investigative and forensic accounting engagements. They will be used for evaluating the usefulness of expert evidence and should help contain its proliferation in civil cases.

"I know that a number of investigative forensic accountants have already been cross-examined on the exposure draft, and we are anxiously awaiting more tests of how courts and judges feel about them," says Gottschalk.

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