I updated the Principles after being contacted by a Toronto firm about a slip and fall accident. The question came up about being retained on contingency. The contact said they do this when the injured party may have a claim but no money to pursue their rights. He also thought the claim would settle within a year. I told him I couldn’t do this.
The chap was pleasant but I thought later, after he remarked he was acting for a partner in the firm, that he may have been a more junior member of the firm and just didn’t know: Experts don’t take cases on contingency, and slip and fall cases typically take more than a year to settle.
Common law requires that experts: (Ref. 1)
- Be independent from the parties that retain them
- Provide objective, unbiased opinion evidence in relation only to matters within their expertise, and,
- Avoid assuming the role of advocate for the parties that retain them
These requirements are the same in all issues involving dispute resolution and claim settlement. The great majority of experts know that they serve the process, as found in a pilot study of 152 Canadian experts, not the party who retained them. (Ref. 2)
The requirements also mean that an expert must engage on a fee basis not on a contingency basis.
But, to be absolutely sure that there wasn’t another school of thought out there on experts and contingency I contacted the head of another Toronto law firm. I haven’t been answered – slammed would be more correct – as quickly as in this case: “Absolutely not!”.
After all this, I thought, I better update the Principles to be sure it’s clear when managing cost that experts are not retained on a contingency basis.
You can read the updated Principles at http://www.ericjorden.com/blog/2019/07/30/principles-governing-the-cost-control-of-dispute-resolution-and-claim-settlement-involving-experts/ as originally posted on July 30, 2019.
- Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
- Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018
- Jorden, Eric E., Consulting professional engineer; forensic engineer, Geotechnology Ltd., Halifax, Principles Governing the Cost Control of Dispute Resolution and Claim Settlement Involving Experts, presented at the Expert Witness Forum East, Toronto, February, 2018
(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada September 23, 2020. firstname.lastname@example.org)