Emerging trends and practices of expert evidence in common law jurisdictions

Earlier this year the Canadian Institute of Chartered Business Valuators (CICBV) commissioned me, along with my colleague Errol Soriano, to study emerging trends and practices concerning the use of expert evidence in common law jurisdictions, including Canada, the United States, the United Kingdom, Australia, and in international arbitration.

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

In response to these concerns, recent amendments to the rules of civil procedure in many common law jurisdictions (including Ontario) have sought two common objectives:

• formally defining the expert’s duty to the court
• placing limits on the allowable scope of the expert’s evidence.

Cost of litigation was the next most cited problem with expert evidence. Until recently, this concern was a resigned complaint, and little was done to address it. This is beginning to change.

New and innovative approaches to expert evidence are emerging in many jurisdictions. One such development is the introduction of pre-trial “expert conferences”, whereby experts retained by opposing litigants meet in advance of trial to discuss their findings, exchange information, and identify areas of agreement and disagreement. If so instructed, experts may draft a joint statement outlining areas of agreement and disagreement to assist the court in better understanding the distance between the parties.

In the UK and Australia, where the practice is more common, lawyers have shown some reluctance to relinquish control of the proceedings to their experts. Having said this, both lawyers and the judiciary have credited expert conferences with narrowing issues at trial, and with reducing the overall time and cost of litigation. It has also been said that it is more difficult to defend extreme positions when the expert is required to justify their opinions in the presence of fellow experts.
Not surprisingly, the limited data available to us suggests that the UK and Australian court judges are increasingly directing experts to confer in advance of trial.

While recent changes to the Canada’s Federal Court Rules and Ontario’s Rules of Civil Procedure now give courts discretion to direct that experts confer in advance of trial, the use of expert conferences in Canada is still rare.

There is currently little in the way of empirical evidence which speaks to whether the use of pre-trial expert conferences has resulted in a meaningful change in the practice of experts or the cost of litigation in Canada. That said, our study found that early adopters across Canada view expert conferences to be a useful tool. This suggests to us that there may be disconnect between current and preferred practice. As such, we expect over time that the use of expert conferences will become increasingly more common in practice.

The following is a brief list of issues to consider when instructing an expert for an expert witness conference:

• Mandate – have both experts been provided with the same mandate from counsel? To the extent they differ, the impact on the expert’s conclusion should be explained in the joint witness statement.
• Assumptions – how do the critical assumptions adopted by each expert differ? Where there is disagreement between experts in regard to critical assumptions, the joint statement can assist the court by stating the impact that different assumptions have on the conclusions reached.
• Scope of review – have both experts been provided with the same documents and information? The joint statement should state whether the existence of new information causes either expert to reach a different conclusion.
• Errors or omissions – have errors or omissions in either experts’ work been identified? The impact of these errors or omissions should be quantified.
• Other Issues - have any other issues arisen as a result of the discussion between experts?  The joint statement should state what further action, if any, can be taken to resolve these issues. The joint statement should also state all issues to which the experts continue to disagree and why.

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

About the Author

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