Happy News for Lawyers and Expert Witnesses

As a financial professional, you may be called upon from time to time to act as an expert witness in a legal case.

A recent case in Ontario called into question the time-honoured tradition of counsel working with expert witnesses in advance of a trial, raising concern about potential uncertainty for expert witnesses.  To the delight of lawyers however, tradition was upheld in Moore v. Getahun 2015 ONCA 55.

Legal counsel plays a key role in the process by explaining the legal issues and the ethical obligations of the expert witness, guiding them through the process but reminding them that they must ultimately remain independent. Without guidance from counsel, expert witnesses may rightfully feel apprehensive, or completely lost at sea, about their role.

Although the process varies somewhat province by province according to particular civil rules established in each jurisdiction, expert reports have long been prepared in the same manner throughout Canada and other common-law jurisdictions.  Consultations with the lawyer(s) who request the expert report might include reviewing the draft report and/or discussing it in advance of the trial with the expert witness who prepared it and will be speaking to it in court.

A lower court (a court where an appeal may be taken)  however, called that entire preparatory process into question. The trial judge in this case stated that it was “improper for counsel to assist an expert witness in the preparation of the expert’s report.”

Although the expert evidence was held not to affect the actual outcome of the trial (the appeal was dismissed), the ONCA (Ontario Court of Appeal)  later recused many of the remarks made by the lower court—much to the delight of lawyers and expert witness professionals. 

At paragraph 57 of the Ontario Court of Appeal decision, Justice Sharpe stated: “the ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses.” It was further found that, “it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports.” 

These comments are to be welcomed by all professionals who might one day find themselves on the stand at trial. This allows the expert witness to focus their evidence on the key issues at stake, while staying within the mandated ethical boundaries. As the Court stated quite aptly, “It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.”