Lawyers Can Help Shape Expert Reports: Moore v Getahun
Lawyers and experts can and should work together to prepare expert reports, declared the Ontario Court of Appeal (“ONCA”) in a recent unanimous decision. In late January, ONCA ruled in Moore v Getahun, 2015 ONCA 55, that allowing lawyers and experts to discuss the contents of expert reports while those reports are being prepared is in the best interests of justice. The ruling produced no change in outcome for the appellant, however, as the appeal bench ruled the trial judge’s errors did not change the final result, and it dismissed the appeal.
In the decision, Justice Sharpe wrote:
Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared (para 64).
The trial decision under appeal was released in January 2014. That trial (covered here) was a medical malpractice case that relied on expert testimony. In her reasons, Justice Janet Wilson expressed harsh criticism of the long-standing practice of litigators communicating with their expert witnesses during the process of preparing their expert reports. She suggested that this practice threatened the integrity of legal systems. She went on to compel one of the appellant’s expert witnesses, Dr. Taylor, to produce the drafts of his report that showed what changes he had made after discussions with counsel.
Her comments that such communication was unacceptable sent shockwaves through the legal community. Defence counsel and prosecutors across the province banded together to express their concerns. Six groups representing lawyers and experts were granted intervenor status and made submissions in the appeal.
In the appeal, the court considered (1) whether the trial judge erred in her treatment of the appellant’s expert opinion evidence by (a) criticizing the appellant’s counsel for discussing with an expert witness the content of his draft report and (b) rejecting aspects of the appellant’s expert opinion evidence on account of alleged contradictions between the experts’ testimony and the experts’ written reports. The bench also considered (2) if the trial judge erred in applying the doctrine of res gestae, (3) if the trial judge erred in her analysis of causation and (4) whether the trial judge’s errors rendered the trial unfair.
The appeal bench spent the bulk of its decision discussing the judge’s treatment of expert evidence, which Sharpe called “the most significant legal issue” raised (para 4). He found that Justice Wilson had erred in holding that it was unacceptable for counsel to review and discuss reports with expert witnesses. He also found that she had erred in using the expert reports, which were not entered into evidence and were not the subject of cross-examination, “to contradict and discredit aspects of the viva voce evidence of the appellant’s expert witnesses” (para 7).
In his analysis, Justice Sharpe mentioned that Justice Wilson’s comments about expert testimony were rooted in concerns that counsel would attempt to change the opinion of expert witnesses. He noted that he found no evidence to show that either counsel or Dr. Taylor had done anything improper and he found that the report in question seemed to reflect Dr. Taylor’s own unbiased opinion on the medical issues at the heart of the case.
Justice Wilson, in her remarks, had interpreted the 2010 amendments to the Rules of Civil Procedure, RRO 1990, Reg 194, as effectively changing the role of expert witnesses so that it would be inappropriate for them to discuss their reports with counsel. Justice Sharpe disagreed with her interpretation, saying that the amendments had in fact been intended to clarify the existing duties of expert witnesses, not to change them. He noted that current law and the ethical and professional standards already maintain expert objectivity by forbidding lawyers from interfering with their experts’ independence. Beyond that, ethical standards of the professional bodies that govern expert witnesses also oblige their members to remain impartial and unbiased.
As well, Justice Sharpe pointed out that the adversarial process itself, which allows thorough cross-examination of expert witnesses, acts as a check against improperly influenced expert witnesses. He added:
I agree with the submissions of the appellant and the interveners that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case (para 62).
He found, however, that the errors the trial judge had made in her treatment of the expert evidence did not lead to a different outcome than if she had not made those errors. He found that she did err in applying the res gestae doctrine, but that her reasons showed no evidence that she relied on those statements. Justice Sharpe found, too, that Justice Wilson’s causation analysis was reasonable and free from both factual and legal errors. He concluded that, despite the errors and interventions made by the trial judge, they did not significantly affect the outcome. He noted that the errors may have affected the credibility of some of the appellant’s witnesses, but the case hinged on the reliability of the witnesses, not their credibility.
This ruling is a victory for advocates, but also for experts, triers of fact, the legal system and society at large. When lawyers help shape witness reports, they are helping the pursuit of justice. They are working within strict ethical guidelines to communicate complex information to the court in a clear and efficient way. Justice Sharpe’s judgment notes:
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 (para 65).
This decision underscores one of the important roles that litigators play in the courtroom. While expert witnesses are present to aid the court in understanding technical subject matters, lawyers are a critical part of that communication. Lawyers are experts, too, on evidence law, on burdens of proof and standards of proof. They are alive to the legal issues at stake in a case in a way that a technical expert is unlikely to be. They are also experts in communication and are able to help experts translate technical details into language that is more understandable to the court. They can assess what details are relevant and which are not, helping to ensure that expert reports and testimony relate to the critical issues of the case.