Criminal Law

Lawyers' ability to consult experts throughout process is critical

A recent Ontario Court of Appeal ruling that reaffirms the right for counsel to consult with experts about draft reports in litigation proceedings secures a critical part of the court process, says Toronto criminal lawyer Matthew Friedberg.

“I think it’s a well reasoned and clarifying ruling – there are a lot of inherent problems with the alternative,” he tells Advocatedaily.com. “The Ontario Court of Appeal ruling will really give some guidance and certainty for lawyers.”

In Moore v. Getahun, 2015 ONCA 55 (CanLII), the appellate court rejected a lower’s court’s proclamation that the practice of consultation between counsel and expert witnesses to review draft reports must end.

“Leaving the expert witness entirely to his or her own devices, or requiring all changes to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner,” says the higher court.

The Court of Appeal’s Justice Robert Sharpe went on to say that such a rule would encourage the hiring of “shadow experts” to advise counsel, which would be “an incentive to jettison rather than edit and improve badly drafted reports, causing added cost and delay.

“Precluding consultation would also encourage the use of those expert witnesses who make a career of testifying in court and who are often perceived to be hired guns likely to offer partisan opinions, as these expert witnesses may require less guidance and preparation,” says the judge. “In my respectful view, the changes suggested by the trial judge would not be in the interests of justice and would frustrate the timely and cost-effective adjudication of civil disputes.”

Friedberg says lawyers themselves aren’t experts in areas other than the law. And so, it’s important they have access to experts to understand issues that come up in a case that are extraneous to the practice of law, including medical issues, business or financial issues or psychology.

“Experts provide a two-fold function to lawyers – one is to help them understand the case and then the second issue is to help them obtain an opinion about an issue that a lawyer may want to call evidence on,” he says. “They are very important components of a legal case.”

Friedberg says the lower court ruling may have resulted in a lot of people being concerned and perhaps paralyzed given its signifiacntly different approach to the issue.

“I think a lot of lawyers may have been at a loss of how to conduct themselves when it came to the use of experts,” he says. “It goes to the heart of how a lawyer can conduct himself in a case.”

Friedberg says the previous ruling seemed to “create more problems than it was trying to solve.”

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