Reforming expert evidence
Moving to a less adversarial, lower cost approach to streamlining trials.
Yoram Beck and Suzanne Loomer
Expert evidence is a key piece of the litigation process, and, despite its challenges, is here to stay. But that doesn’t mean our legal system shouldn’t explore alternative approaches that reduce the cost of litigation and present expert evidence more effectively.
Of course, expert evidence has always occupied an area somewhere between fact evidence and judicial determination. Historically, the courts have recognized this and set clear rules and exceptions governing its admissibility. And over the last few years, rules of civil procedure in Canada have empowered the courts to guard against improper conduct by experts. The case law even emphasizes the need for governing bodies to remain vigilant and proactive in their oversight of expert evidence.
So how should we go about bringing down the costs associated with expert testimony?
Already our courts and justice system have begun to evolve on this front. Part of that effort is to look at how expert evidence is used and presented in litigation proceedings. In fact, alternative approaches that recognize the unique nature and limitations of expert testimony, yet seek to reduce litigation costs rather than increase them, are needed.
A recent study published by the Canadian Institute of Chartered Business Valuators (CICBV) explores the recent evolution of expert evidence by examining alternative approaches that have been (and are being) used in different Commonwealth jurisdictions around the world. Concurrent evidence, jointly appointed experts and expert conferences are examples of emerging approaches to expert evidence that allow for a potentially less adversarial process when presented to the courts. Furthermore, if done right, these alternative approaches may have the added benefit of promoting settlement, streamlining trials, reducing court backlogs, making better use of expert time, and reducing litigation costs.
Here are some of the pros and cons of these alternative approaches to expert evidence.
Concurrent evidence or hot tubbing
Concurrent evidence (sometimes colloquially referred to as hot tubbing) refers to the requirement that experts share close quarters while simultaneously presenting their evidence. At trial, the experts are examined and cross-examined by counsel and/or the trier of fact.
While the use of concurrent evidence in Canada remains in its infancy, there are positive outcomes from its extensive prevalence in Australia. A few major advantages of concurrent evidence include:
a reduction in litigation costs by focusing on areas of disagreement between the experts; and
a less adversarial process between the experts.
This approach is not without its limitations, however, including:
the approach may favour experts who are more aggressive and assertive in nature; and,
the less structured format could result in control over the presentation of expert evidence being ceded by counsel.
Jointly appointed experts
Jointly appointed experts offer a different format where either the Court appoints or both parties mutually agree to a single expert. In such a case, the expert is instructed by the Court or by both parties whereby the expert prepares an opinion under a single set of facts and assumptions.
The advantages of this approach include:
the often combative nature of dueling experts is avoided;
prospects for settlement and trial decisions are improved; and,
costs are reduced.
Disadvantages cited when using jointly appointed experts include:
limitation in the ability to present further evidence; and
costs are not necessarily reduced if each party also retains their own additional expert to act as a litigation consultant to assist counsel in the cross-examination of the jointly appointed expert and in providing instructions to the jointly retained expert.
Expert conferences and joint expert statements
A third alternative approach, expert conferences and joint expert statements, is often viewed as a hybrid of the previously discussed approaches with the objective of promoting a discussion between opposing experts and narrowing the issues. Often the experts will individually prepare their own reports and, prior to trial, prepare a joint statement about the areas of agreement and disagreement.
Ultimately, the advantages and disadvantages of this approach are similar to concurrent evidence, but may result in further reduction in costs and time given that issues are narrowed before trial.
Grant Thornton LLP asked 108 lawyers across Canada as part of its recently released National Litigation Survey to provide insights and perspectives on each of the above alternative approaches for presenting expert evidence.
Dennis Leung, a Chartered Business Valuator (CBV) with Grant Thornton, explained that this survey was conducted “to identify how litigation practices are changing and how trends in areas such as expert evidence are affecting litigation and legal practices. We were also interested in lawyers’ views of alternative approaches to expert evidence, how they might utilize experts in the future, and the forums in which experts will provide evidence.”
According to the survey, alternative approaches are increasingly being adopted during litigation cases in Canada. Of the lawyers surveyed, 49 percent know of cases that used one of the approaches; and already some are preferred over others.
Specifically, concurrent expert evidence was found to be the least favoured. Insights from the report highlight some of the practical issues with this approach, including:
Lawyers from each side are required to agree on how the process will run;
Counsel needs to consider not only the expertise of the expert, but the expert’s debating skills and ability to react quickly in a concurrent evidence process;
Presenting concurrent evidence may unintentionally give the perception that the two experts are equal in credentials, reputation and experience, when in fact it is not the case;
Some experts may become advocates in a concurrent evidence setting;
The personality of the experts can impact the case, such as bullying tactics;
Matters involving opinion evidence are not usually black or white, so it is still up to the judge to assess the credibility of each expert and make a decision;
It is possible that the two experts will not agree on anything, thus defeating the purpose of finding commonality within the expert evidence.
Jointly appointed experts and expert conferences were found to be the most popular among the surveyed lawyers, each of these approaches were favoured by about 20 percent of the lawyers surveyed.
However, the report also highlighted some practical issues when using jointly appointed experts, such as:
The need for both sides to agree on the expert;
The infeasibility of it because many litigators prefer to manage their experts independently; and
The approach may not affect litigation costs because it results in consulting experts being retained by both sides.
When asked about expert conferences and joint statements, lawyers surveyed said these approaches tend to be more often used for mediations and arbitrations, but have on occasion been ordered by a judge. Expert conferences and joint statements were found to be helpful when experts identify the main areas that need to be resolved, thereby increasing the possibility of settlement. Even if settlement is not possible, the process allows the parties to focus on the key issues that experts do not agree on, thereby streamlining the litigation process and making it easier for a judge to make a decision.
The emerging approaches reviewed here are still relatively new and likely to experience their own evolution as they are applied to more cases. But it’s a necessary road the legal system needs to explore. Errol Soriano, one of the co-authors of the CICBV study, sums it up this way: “Concurrent evidence, joint retainers and expert conferences, and joint expert statements are tools that litigators should be familiar because each of these tools has the potential to present expert evidence more effectively and at a lower cost than the traditional approach of examination in chief, cross-examination and reply.”
Suzanne Loomer is a Chartered Business Valuator, member of the Canadian Institute of Chartered Business Valuators (CICBV) and Managing Director of Froese Forensic Partners Ltd. (firstname.lastname@example.org, 416-926-4216)
Yoram Beck is a Chartered Business Valuator, member of the Canadian Institute of Chartered Business Valuators (CICBV) and Vice President at Richter (email@example.com, 416-642-4834)
The CICBV is a professional association that establishes practice standards, educational requirements and ethical guidelines, which promote the integrity of the Chartered Business Valuator (CBV) profession in Canada. The CBV designation is the premier credential for professional business valuators and litigation support advisors in Canada.