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The evolution of expert evidence

Concurrent evidence, pre-trial conferences among global trends


By Erik Arnold

May 24 2013 issue


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Expert opinion evidence continues to be a vital part of the adversarial litigation process. Few would dispute the need for this type of evidence, and many would say it is all the more important today, given the heightened complexities of daily life.

But it is also fair to say that expert evidence is seen, notably by members of the judiciary, as somewhat of a necessary evil, as it occupies the grey area between fact evidence and judicial interpretation.

In 2012, Errol Soriano and I were commissioned by the Canadian Institute of Chartered Business Valuators to study emerging trends and practices concerning the use of expert evidence in common law jurisdictions around the world, including Canada, the United Stated, Britain, Australia, and in international arbitration. This article summarizes some of the key findings of our study.

In virtually every jurisdiction surveyed, adversarial bias was identified as the single most important problem with expert opinion evidence. Guarding against what we term “advocacy by experts” has become a major focus for stakeholders.

In response to these concerns, recent amendments to the rules of civil procedure in various jurisdictions have sought two common objectives — formally defining the expert’s duty to the court and placing limits on the allowable scope of the expert’s evidence. Reporting requirements in various jurisdictions now mandate, at a minimum, positive affirmation of the expert’s roles, responsibilities and, in particular, their duty to the court. The persistent concern regarding experts has also led to reduced autonomy regarding the content of their reports.

The cost of litigation was the next most cited problem with expert evidence, and it was a close second. The view that expert evidence is expensive is not new. Until recently, however, the dialogue amounted to resigned complaint and not actionable reform. This is beginning to change.

Rules committees and other stakeholders are now focused on the possible substance and form of procedural reform, the objective being to reduce costs of opinion evidence while maintaining the tenets of the adversarial judicial system favored in each jurisdiction. As a result, innovative approaches to expert evidence are emerging.

Concurrent evidence, better known by the rather unfortunate colloquial term “hot tubbing,” is the process of two (or more) experts arranging as a panel and giving evidence at trial together. While concurrent evidence is a relatively new phenomenon in Canada, Australia has extensive experience with the practice dating to the 1970s.

The practice in Australia, when used in appropriate circumstances, has been credited with reducing the length and cost of trial. There is also general agreement that the practice has shifted the focus of trial more directly to the critical issues of contention between experts and has reduced the adversarial nature of cross-examination between experts and opposing counsel.

Our study suggests that the use of concurrent evidence in other jurisdictions around the world is becoming more common. In Canada, recent changes to the Federal Court rules, and several provincial jurisdictions, now allow for its use. While the method is not a panacea, there is little doubt that it holds promise to be a valuable tool.

Another innovative approach which has emerged is the use of expert conferences, in which experts meet in advance of trial to discuss their findings, exchange information, and identify areas of agreement and disagreement. If so instructed, experts will draft a joint statement to assist the court in better understanding the basis for any disagreement.

There has been increasing support for this approach in Britain and Australia, where expert conferences are more commonly used. The practice is viewed as a useful way to narrow issues at trial. While lawyers have expressed some concern over relinquishing control of the proceedings, there is agreement that it can reduce the length and cost of trial. The limited data that is available to us suggests that British and Australian court judges are increasingly directing experts to confer in advance of trial.

Recent changes in Canada to the Federal Court rules, and several provincial jurisdictions, now give courts discretion to direct that experts confer in advance of trial. While use of the practice in Canada is rare, our study revealed that early adopters have found it to be a useful tool, suggesting there may be a disconnect between current and preferred practice.

The repeated admonishment of experts in recent court decisions all over the world continues to serve as a constant reminder to all stakeholders that there is room for improvement in how expert evidence is tendered in our litigation system.

Presently, there is little empirical evidence which speaks to whether recent procedural reforms or the advent of novel approaches have resulted in a meaningful change in the practice of experts. While these approaches do not yet have a long track record in Canada, they are generally seen as being positive developments to the litigation landscape and are becoming increasingly common practice in other jurisdictions.

Our full study, titled The Recent Evolution of Expert Evidence in Selected Common Law Jurisdictions Around the World, is available for download from CICBV at cicbv.ca/research.

Erik Arnold, CPA, CA, CFA is a director with Campbell Valuation Partners Ltd., specializing in business valuation and damages quantification.

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