Expert shopping: Paying the price

By Alexander Gay September 21, 201721 September 2017

Expert shopping: Paying the price


Expert shopping is an all-too-common practice that undermines the legal system as a whole.  It can it result in egregious miscarriages of justice and undermines the confidence in the judicial system.

In 2015 the Supreme Court sounded warning bells on the misuse of expert evidence in its White Burgess ruling and opened the door for challenging witnesses at the voir dire stage for bias. But we have to consider more radical solutions to temper what can only be described as an unsavory practice by counsel.  The manner in which expert evidence is handled in the United Kingdom offers some clues that may assist us in tracing a path forward.      

The root of the problem is that we pay experts to provide testimony.  When counsel do not get full co-operation, or receive evidence that is not as favourable to their case as they would like, they can move on to the next expert and bury the first expert’s conclusions in his or her files.  Litigation privilege shields them from informing the court on the number of experts that have been consulted. 

Depending on the industry, there are stables of experts who counsel know favour a particular type of litigant.  In this context, the handling of experts has become nothing more than a game of negotiating the purchase price on a rug at a Turkish bazaar.  As Sir George Jessel, M.R., put it in the 1870s, “[u]ndoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them”: Lord Abinger v. Ashton (1873).  The observation holds true today.

Ontario has tried to curb the abuse of expert shopping, without much success. In 2007, former Associate Chief Justice Coulter Osborne released his Civil Justice Reform Project, which among its many recommendations called for a new rule that confirms that the duty of an expert is to assist the court.   The expert's duty also prevails over any obligation he or she owes to the appointing party. 

These reforms, while a step in the right direction, have done little to fix the problem.

In White Burgess the Supreme Court offers a solution by excluding evidence that does not qualify as unbiased and impartial. However, the ruling does not solve the structural problems that flow from remunerating an expert witness.  It only creates a legal consequence for counsel that get caught trying to put forward biased expert evidence.  The drivers that lead counsel to shop for experts, however, remain intact.   

In England & Wales, the Civil Procedure Rules require a party to declare at the outset the names of the experts that it intends to rely on at trial.   The court has broad discretionary power to impose terms when granting permission to a party to adduce expert opinion evidence.  In doing so, it may allow a party to rely on a second replacement expert, but typically only when the report of the first expert is disclosed.  

In a 2011 ruling, Edwards-Tubb v JD Wetherspoon Plc, the England & Wales Court of Appeal acknowledged that such a conditional order may be seen as a disproportionate interference with the right of privilege. However it ruled that it is appropriate for the court to exercise its discretionary power to discourage expert shopping. It is a power to be exercised reasonably on a case-by-case basis, and the court will require strong evidence of expert shopping before imposing a term that a party discloses other forms of document than the report of the first expert, such as notes.

Admittedly, the legal profession may view the approach in the UK as potentially infringing privilege claims, but in the UK there is a difference between an expert who is retained to produce an expert report and an expert who is retained as a consultant for the litigation itself.  Only the former is subject to disclosure obligations under the rules and not all expert consultation is covered by the rule.  The search for truth is therefore not compromised.  And because experts are there to serve the court and not the litigants, courts can impose conditions on the production of a second expert report, compelling counsel to waive privilege.  While this model may still require some refinement, the solution developed in the UK offer some interesting insight on how we can move to control a practice that should concern us all. 

Alexander Gay is General Counsel at the Department of Justice. He maintains a broad civil litigation practice, with an emphasis on commercial and trade disputes. He is also a part-time professor at the University of Ottawa (Faculty of Law) and the author of the Annotated Arbitration Act of Ontario, 1991. The author's views are his own.

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