Expert Witnesses: The Who, What, When And How Of Retaining Experts And Making Them Effective For You

Expert witnesses are an integral part of the litigation process. The majority of, if not all, personal injury claims involve the use of experts to assist with the resolution of a claim or to adduce evidence at trial.

1. EXPERT WITNESS SELECTION

   The purpose of an expert witness is to elicit evidence about the facts of the case, more specifically, opinion evidence based on the expertise of the witness.

   In Regina v. Abbey, [I9821 2 S.C.R. 24, Mr. Justice Dickson (as he then was) of the Supreme Court of Canada stated the following with respect to the role that expert's play in the trial process (at p. 42):

   With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.). An expert witness, like any other witness, may testify as to the veracity of facts of which he has first-hand experience, but this is not the main purpose of his or her testimony. An expert is there to give an opinion. And the opinion more often than not will be based on second-hand evidence.

   Therefore, an expert should have "first-hand" knowledge of the facts of a case, but this is not a necessity because it is the expert's opinion that the Court is interested in hearing. A familiarity with the facts in the case however, will help the witness form his/her opinion.

   Based on the above, it is evident that the only time expert evidence is necessary is when the judge and/or jury would not be able to adequately formulate an opinion on the facts of the case without the assistance of the expert opinion.

   i. Selecting and Retaining an Expert

   A crucial aspect of selecting an expert witness is that the expert must present as impartial, knowledgeable, coherent and credible. Unfortunately, this is not an easy task. Experts may have one of these qualities or none.

   In determining which expert to use, counsel should consider the expert's level of expertise, but more importantly, how the expertise relates to the evidence counsel wishes to elicit at trial. Consideration should also be given to whether or not the expert will be available for the trial, whether they are able to commit to the time required to prepare their testimony as well as to assist counsel with responding to the opposing party's experts, and the cost benefit analysis in retaining that specific expert.

   ii. Communicating With Your Expert at an Early Stage

   It is a good idea to retain an expert in the early stages of litigation, especially if the matter involves a number of technical issues. If this is the case, it is recommended that an expert be retained even before the examinations for discovery in order to help counsel formulate the type of questions to be asked at the examination for discoveries. Otherwise, experts may be retained at any stage of litigation, but it is more beneficial to retain the expert early on as it will assist in forming your damages brief in preparation for mediation or trial.

   An expert may be at the top of the list of experts in their field, but unable to coherently express a complex topic in layman's terms to a jury. It is important that counsel take the time to scope out the specific type of expert witness they wish to rely on at trial and consult with other lawyer's to obtain information about their experience at trial with the specific expert. Counsel can also conduct research about the expert in order to gain a more thorough understanding of the expert's level of experience in giving evidence at trial, and/or interview the expert in order to get a sense of how he/she will perform on the stand.

   If the expert has provided evidence at a previous trial before, it is in counsel's best interest to research how the expert's evidence was perceived by the court. Was he/she credible, did the case rely heavily on his/her opinion or was his/her opinion dismissed by the Court?

   It is important to know the answer to such questions before retaining an expert, if possible.

   iii. The Expert's Curriculum Vitae

   In selecting an expert, counsel must review the expert's CV and determine whether the expert can give the opinion that counsel is seeking without going outside the parameters of his/her area of expertise.

   Judges are the gatekeepers of expert evidence to be admitted at trial. The Judge will make sure that the opinion the expert provides falls within his/her expertise, failing which the expert may be disqualified from providing the opinion.

   The expert's CV will undoubtedly be an exhibit at trial. Therefore, the CV must be accurate, up-to-date, clear and of course, impressive. Often times, experts will include a list of everything they have done...