This is particularly the case when\u00a0counsel is assessing the merits of a case.\u00a0 There’s a strong\u00a0argument for consulting an “expensive” expert then.<\/p>\n
This is echoed in the remarks of no less an authority than John Sopinka, former\u00a0judge, Supreme Court of Canada\u00a0(Refs 1 and 2) and in the text by the quite respected\u00a0David Stockwood, Q.C., Ontario.\u00a0(Ref. 3)<\/p>\n
A key technical issue\u00a0missed by\u00a0counsel could render a case untenable.\u00a0 Or be too expensive to investigate\u00a0relative to\u00a0damages thought due\u00a0the Party and to the worth of the file to counsel.\u00a0\u00a0Best to spend some money on an expert at the case-assessment stage than possibly lose a lot of money\u00a0later.<\/p>\n
I blogged last year on the importance of retaining an expert “…early in the life of a case”.\u00a0(Ref. 2)\u00a0 I was reminded of\u00a0its importance to\u00a0a Party seeking\u00a0justice and the money involved on reading the following in an engineering case study:<\/p>\n
“As a wise man once said about “expensive” experts, “When you have to hire one to undo the work of an amateur, they don’t seem so expensive after all.” ”\u00a0(Ref. 4).<\/p>\n
The case study was of inadequate renovation of a building that cost the owner $300,000 a few years ago.\u00a0(Ref. 4)\u00a0 The expert’s fees are certain to have paled by comparison.\u00a0 I also recently investigated\u00a0an inadequate renovation that is likely to cost a lot of money to fix.<\/p>\n
Counsel almost always recognizes that the cause of a failure or accident must be determined – a key\u00a0technical issue for sure.\u00a0 But there are\u00a0often other issues\u00a0– key ones and subordinate ones –\u00a0that are beyond counsel’s technical expertise to identify.\u00a0 Some of these might need to\u00a0be investigated in determining cause, at unexpected expense.<\/p>\n
I’ve had\u00a0the\u00a0occasional\u00a0investigation stopped because of\u00a0mounting cost to the worth of the file.\u00a0 Counsel’s costs are cut but\u00a0I wonder\u00a0to what extent\u00a0justice for\u00a0the Party is\u00a0compromised by an incomplete forensic investigation?<\/p>\n
The cases\u00a0likely will be argued still but without benefit of\u00a0complete technical input.\u00a0 One case\u00a0is certain to be argued and likely cost the law firm\u00a0much more\u00a0compared to\u00a0the cost of an “expensive” expert.\u00a0 In this case, for want of a simple, one line, 2″ long,\u00a0high school, arithmetic calculation that would quickly resolve an important technical issue in\u00a0counsel’s favour.\u00a0 Without the calculation three parties will keep arguing their respective subjective assessment of the size of a feature in the landscape – on and on and dollar after dollar.\u00a0 I offered to report verbally but\u00a0senior management declined.<\/p>\n
What happened in these cases was that non-technical people –\u00a0counsel, with\u00a0all\u00a0due\u00a0respect, estimated the cost of technical services unrealistically\u00a0low when the merit of the cases were being assessed.\u00a0 Yet in these cases – three come to mind, the awards would be\u00a0well into six figures.<\/p>\n
Consulting with an “expensive” expert before a case is taken will ensure\u00a0most\u00a0if not all\u00a0technical issues are identified.\u00a0 And\u00a0the need recognized to investigate these at some cost if the case has merit.\u00a0 The expert might cost in the\u00a0very low 1,000s, the possible need\u00a0for forensic investigation in the low 10,000s won’t be a surprise, and awards in the 100,000s won’t be compromised by investigations stopped in mid-task.<\/p>\n
Reference<\/strong><\/p>\n Bibliography<\/strong><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" This is particularly the case when\u00a0counsel is assessing the merits of a case.\u00a0 There’s a strong\u00a0argument for consulting an “expensive” expert then. This is echoed in the remarks of no less an authority than John Sopinka, former\u00a0judge, Supreme Court of … Continue reading \n
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