Judge John Sopinka, Supreme Court of Canada was clear on this matter of retaining experts:<\/p>\n
“Much of the civil litigation today, both civil and criminal, involves subject matter which is not readily understood by the average juror or judge.\u00a0 <\/em>Expert evidence serves to simplifly these matters which so commonly crop up in our complex\u00a0and scientifically oriented society …<\/p>\n …due to the pervasive use of experts, counsel undertaking a case of any complexity must consider, early in the life of the case<\/em>, whether there are areas in which an expert can be of assistance.” (Ref. 1. Italics mine)<\/p>\n And\u00a0Judge Sopinka said this back in 1995 – 19 years ago!\u00a0\u00a0Society is even more complex and scientific\u00a0today, and more litigious.<\/p>\n “Expert witnesses play an important role in modern litigation.”\u00a0 Said in 2004 – 10 years ago.\u00a0 (Ref. 2)<\/p>\n The technical issues can make or break a case.\u00a0 The sooner you retain an expert the\u00a0better, even\u00a0if only briefly\u00a0– preferably as soon as when you are deciding whether or not to\u00a0take a case.\u00a0(Ref.\u00a01, 3)<\/p>\n Your decision about taking a case should\u00a0reflect an assessment of the technical issues involved.\u00a0 Your assessment should reflect input from an expert in identifying the technical issues and\u00a0estimating the\u00a0cost to investigate these.<\/p>\n Assess whether or not there are, in fact, any technical issues, the number of technical issues, their nature and complexity, some feel for the forensic investigation needed, some feel for the cost to investigate, the file’s worth, etc.<\/p>\n Do this in spite of the considerable difficulty assessing the extent and cost of a forensic investigation.\u00a0 Take a stab at it with the assistance of an expert and the resources that are out there (Ref. 4) – and do it early in the case like Judge Sopinka recommended.<\/p>\n Who better qualified to help you make that assessment than the expert who might do the forensic work for you?<\/p>\n All the while as you assess the need and consider retaining an expert remember the different roles of the\u00a0lawyer and the expert (Ref.\u00a05):<\/p>\n For certain, whatever you do,\u00a0determine first\u00a0if you and the\u00a0justice system\u00a0will need input from an expert, and talk to an expert in deciding this – early in the case.<\/p>\n I was prompted to blog on this\u00a0issue when I learned of a litigator who under-estimated the total cost of forensic investigation by 50% in one case –\u00a0seemingly, not too bad, but read on, and by a factor of 300% in another –\u00a0shocking regardless the circumstances.\u00a0 And those percentages were\u00a0just for the preliminary forensic work in both cases – that is, relating counsel’s estimated total costs<\/em> to the expert’s invoiced preliminary costs<\/em>!<\/p>\n The expert in both cases was retained several years<\/em> after the lawyer took the cases.<\/p>\n Needless to say, the expert’s findings – technically favourable to the plaintiff in both cases,\u00a0may not\u00a0be used because they would need to be disclosed to opposing counsel.\u00a0 Think it works like that.\u00a0 And that would involve the expert\u00a0again with additional cost.<\/p>\n In another case, definitely the wrong party is being sued,\u00a0if\u00a0only\u00a0the technical issues are considered.\u00a0 This is based on a very conclusive, visual\u00a0site assessment by an engineering expert of a\u00a0quite\u00a0striking and unusual\u00a0failure.\u00a0 Seeing the highly probable cause of the problem – not the exact cause, mind you, and the party responsible, was too simple.<\/p>\n In the same case, there is\u00a0definite damage to another\u00a0structure on the same site\u00a0but the party involved\u00a0has not been named.\u00a0 As near as I can gather, the owner of this structure is not even aware of the damage and his possible right to compensation.<\/p>\n Why these\u00a0mistakes in these cases?<\/p>\n In the first two\u00a0cases I suspect because an expert was retained by counsel several years after the cases were taken.\u00a0 And\u00a0counsel did the retaining\u00a0with little or no appreciation of the investigations that would be required by the expert, and the cost of these.\u00a0 And no\u00a0expertise in\u00a0estimating these technical costs to\u00a0relate to\u00a0the estimated worth of\u00a0the file.<\/p>\n In the third case, I suspect that the plaintiff is unfamiliar with civil litigation and the\u00a0need and the cost of an expert.\u00a0 And his\u00a0counsel doesn’t know how to use an expert to get the case going in the right direction and in the most cost effective way.<\/p>\n I’m certain the people involved in these three cases are capable people in their own right, but not in planning and estimating the costs of forensic investigation.\u00a0 That’s what experts are for.<\/p>\n I could go on and cite other cases from my personal experience and from that of other\u00a0experts.<\/p>\n But, to be fair, I can also cite cases of a bad choice of an engineering “expert” and\u00a0terrible costs ensuing for the client because of inadequate and bloated engineering investigation.<\/p>\n In one case, managed by one engineering “expert”,\u00a0$140,000 total fees were submitted and paid to\u00a0one law firm, one land surveying firm, and three engineering firms.\u00a0\u00a0A simple investigation and\u00a0peer\u00a0review for $1,200 by another expert quickly demonstrated that there wasn’t a\u00a0problem\u00a0caused by others\u00a0and the client didn’t have a case.<\/p>\n For certain, that’s a blog for another day.<\/p>\n Please, Counsel, confer with and retain a well regarded\u00a0expert early in the life of the case<\/em>, for the sake of your good file management and your client’s best interests.<\/p>\n References<\/strong><\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Judge John Sopinka, Supreme Court of Canada was clear on this matter of retaining experts: “Much of the civil litigation today, both civil and criminal, involves subject matter which is not readily understood by the average juror or judge.\u00a0 Expert … Continue reading \n
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