Particularly if most disputes don’t go to trial or a tribunal?\u00a0 But, isn’t that the purpose of the rules, to keep disputes out of court?\u00a0 Like Rule 55 in Nova Scotia?\u00a0 That’s true, and they do this by setting a high standard for an expert report.\u00a0 The parties, on reviewing the report, would often enough see their way clear to settle.<\/p>\n
However, I wonder if a lower standard of report is now being accepted?\u00a0 Why pay for a higher standard if the dispute is unlikely to go to trial or a tribunal?<\/p>\n
The standard appears to be lower in the Maritimes if a survey I did of seven engineering experts in NS and NB is any indication.\u00a0 I asked them,\u00a0“<\/strong>To what extent do you see bias and poor analysis and reasoning in rebuttal expert reports?”.\u00a0\u00a0The consensus was\u00a0almost always<\/em>.<\/span>\u00a0<\/strong>(Ref. 1)\u00a0 I’m certain, the question could be asked about expert reports, in general, and the reply would be similar.<\/p>\n (I wonder if the bias and poor reasoning we see in some expert reports in the Maritimes appears in some of the reports of the experts surveyed in Ruth Corbin’s pilot study of 152 experts in Canada?\u00a0 The study noted the expert’s view of their role in the judicial process. (Ref. 2))<\/p>\n The civil procedure rules are a short, simple guide on carrying out a forensic investigation and writing an expert report, but what good are they if they’re not\u00a0followed?<\/p>\n And why aren’t they?\u00a0 Cost?\u00a0 Possibly.\u00a0 An understandably, poorly informed non-technical<\/em> client?\u00a0 Likely.<\/p>\n I don’t think the rules are going to be taken down any time soon.\u00a0 I think what’s expected of the expert must go up.\u00a0 This must come to some extent from a better informed client about the benefits – including cost-benefit in the long run for both client and injured party – of a thorough investigation and a well written, objective expert report.<\/p>\n What’s being submitted now for expert reports and rebuttal expert reports are<\/span> easily reviewed by unbiased, experienced technical experts – easily “slammed!”<\/strong><\/span> to use an expression by one of my survey experts.<\/p>\n (I’ve got a problem with that word “slammed” as reflecting an attitude at odds with a simple desire to seek the truth when peer reviewing another’s expert’s report.\u00a0 But, it does indicate what can happen to a poorly written report)<\/p>\n What are the benefits to the expert and the client of following the rules for likely out-of-court settlements?\u00a0 I think the following quote is a good answer:<\/p>\n \u201cAn expert\u2019s report is a critical, make-or-break document.<\/strong>\u00a0<\/span> On the one hand, a well-written report will make testifying later at discovery and trial much easier<\/em> (if it goes that far, and pre-trial decision making more reliable) and will enhance the reputation of the expert<\/em>.<\/p>\n On the other hand, a poorly written report will damage the expert’s reputation, can turn deposition into a nightmare, and can become a career-ending event<\/em> (and an out-of-court settlement or dispute resolution into something less than fair for some of the parties)\u201d (Ref. 3) (The parenthetic comments are mine)<\/p>\n ***<\/p>\n A little aside<\/strong>.<\/span>\u00a0 What’s in Ref. 3 – How to Write an Expert Witness Report<\/em> – for counsel and insurance claim’s managers if you were to buy it – which I think you should?\u00a0 Maybe even give a copy to your expert?<\/p>\n This 2nd edition, massive, 560 page, 8″ x 11″ book is a step-by-step guide for experts written by lawyers.\u00a0 It’s based on a review of 1,000s of expert reports, case histories and insurance settlements.\u00a0 It will give you great insight into what you should be getting for your expert-report dollar.\u00a0 It’s far more comprehensive than civil procedure rules governing experts, as good as they are.<\/p>\n (This is not a commercial for the book.\u00a0 I use it and it’s excellent!)<\/p>\n References<\/strong><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Particularly if most disputes don’t go to trial or a tribunal?\u00a0 But, isn’t that the purpose of the rules, to keep disputes out of court?\u00a0 Like Rule 55 in Nova Scotia?\u00a0 That’s true, and they do this by setting a … Continue reading \n