Lawyers and Experts, Together Again: Moore v. Getahun – By Alan Melamud

The Court of Appeal has confirmed that lawyers can confer with experts on drafting the expert report. In Moore v. Getahun,[1] the Court concluded that the trial judge erred by finding that it was improper for counsel to confer with an expert witness on a draft report. In a resounding endorsement of the important role lawyers play in ensuring that the Court is presented with constructive expert evidence, the Court held:

I agree with the submissions of the appellant and the interveners that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.[2]

The Court of Appeal further found that the trial judge had erred by relying on the experts’ reports to contradict their oral testimony given at trial. Unless an expert report is entered into evidence as an exhibit, it has no evidentiary value. Any contradictions must be raised on cross-examination to permit the expert to explain and clarify his or her answer.

Counsel’s Communication with an Expert

The Court of Appeal ruled that it is proper and often necessary for lawyers to aid expert witnesses with drafting their reports. At trial, the judge had been critical of defence counsel’s hour and a half conference call with the expert witness regarding his draft report.[3] The trial judge reasoned that the amendments to Rule 53.03 and Rule 4.1.01 changed the propriety of consultations between an expert witness and counsel. Accordingly, the trial judge ruled that “counsel’s practice of reviewing draft reports should stop”, and that all discussions between counsel and experts should be documented and subject to disclosure and production.

The Court of Appeal disagreed. It held that the changes to the Rules did not fundamentally alter the role of experts as it had been understood under the common law. More importantly, allowing lawyers to confer with their expert witnesses helped ensure “the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issue and (iii) is written in a manner and style that is accessible and comprehensible.”[4] Protecting an expert witness’ independence and objectivity does not require that experts be walled-off from counsel. Independence and objectivity are maintained by several institutional factors, including: (1) the ethical and professional standards of the legal profession; (2) the ethical standards of other professional bodies governing experts and lawyers; and (3) the adversarial process (i.e., cross-examination).

On the issue of disclosure, the Court held that communications between counsel and an expert witness are protected by litigation privilege, subject to the requirements of Rules 31.06(3) and 53.03(2.1). This zone of privacy is required so that lawyers can engage with experts and obtain honest and open opinions. Obviously, lawyers cannot interfere with an expert’s duties of independence and objectivity. However, the mere communication between an expert and a lawyer about a draft report, as occurred in this case, was not evidence of such interference.   The Court was clear that thorough investigations into the communications between a lawyer and an expert will be the exception. Absent a factual foundation for the belief that counsel has improperly influenced the expert, lawyer-expert communications and draft reports will remain protected from disclosure.

The key takeaways from the decision for counsel retaining expert witnesses are:

  • Counsel may assist an expert so that the report provides clear and relevant evidence to the Court, but must not interfere with an expert’s independence and objectivity;
  • Subject to the Rules, lawyer-expert communications are privileged; and
  • Absent cogent evidence of improper influence, the Court should not engage in an inquiry into the preparation of expert reports.

[1]              2015 ONCA 55. [Moore (CA)]

[2]              Ibid. at para. 62.

[3]              Moore v. Getahun, 2014 ONSC 237.

[4]              Moore (CA), supra note 1 at para. 63.

 

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