The elephant in the room is the cost of litigation when counsel is talking with an expert.\u00a0 Particularly the cost\u00a0of investigating smaller cases.\u00a0\u00a0Counsel doesn’t always talk with an expert about cost when\u00a0the merit of\u00a0a case is being assessed.\u00a0 This sometimes causes problems later and may also\u00a0compromise an expert’s independence and objectivity.<\/p>\n
Small to medium size cases are the norm, not large, well funded cases brought by affluent litigants.\u00a0(Refs 1 to\u00a04)<\/p>\n
The ‘Principles Governing Communications with Testifying Experts’,<\/em> as developed by The Advocates’ Society, Ontario\u00a0is a good document and was long overdue. (Ref. 3)\u00a0 But there is a need for an additional principle governing communications about\u00a0the cost of litigation.<\/p>\n There are good reasons for developing such a principle\u00a0like there were\u00a0good reasons\u00a0for developing the\u00a0existing Principles<\/em>. \u00a0I understand the Principles<\/em> were developed because counsel’s involvement in the\u00a0expert’s report sometimes compromised the expert’s independence and\u00a0objectivity.\u00a0\u00a0I believe talking about the cost of litigation – after the action has begun <\/em>– could also compromise the expert’s independence and objectivity, at\u00a0least the perception.\u00a0 My belief is based on civil, geotechnical and forensic engineering\u00a0practice in Eastern Canada since the late 1980s. (Ref. 5)<\/p>\n Senior experts could\u00a0help develop such a principle.\u00a0 They could also\u00a0offer comment on\u00a0updating the Principles<\/em>.\u00a0\u00a0Good communication is a two-way process.<\/p>\n Often enough experts are retained months or years after counsel takes a case. (Ref. 1) And after counsel has\u00a0estimated the cost\u00a0of\u00a0the expert`s work.\u00a0 Then the expert`s invoices start coming in as he investigates the\u00a0problem\u00a0and these sometimes exceed\u00a0counsel`s estimate.\u00a0 Counsel stops the forensic investigation.\u00a0 Sometimes so completely that not even an oral\u00a0report\u00a0of the expert`s findings go to\u00a0counsel.\u00a0 Findings that might point the way to justice being done – denying the court and the litigant information is touched on in the Principles<\/em>. (Refs 3 and 4)<\/p>\n During this un-raveling process it’s not difficult to imagine a real or perceived compromising of\u00a0the expert’s independence<\/em> and objectivity<\/em>.\u00a0 These qualities are related to the reliability<\/em> of an expert’s investigation and opinion.\u00a0 Reliability<\/em> is related to the thoroughness<\/em> of an expert’s work, the gathering of sufficient data.\u00a0 Thorough work can be expensive.\u00a0 And when this thorough work is stopped before completion, sometimes this compromises the expert`s independence and objectivity.<\/p>\n A summary of facts<\/strong> supporting the need for a principle governing communications about the cost of litigation:<\/p>\n These facts – and I’m sure there are others,\u00a0support the need for a principle governing counsel’s communications with experts about the cost of litigation.<\/p>\n References<\/strong><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" The elephant in the room is the cost of litigation when counsel is talking with an expert.\u00a0 Particularly the cost\u00a0of investigating smaller cases.\u00a0\u00a0Counsel doesn’t always talk with an expert about cost when\u00a0the merit of\u00a0a case is being assessed.\u00a0 This sometimes … Continue reading \n
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