Working with litigation experts | S2 EP15

Battle of the experts: whether it’s between engineers advising on a pipeline’s propensity to crack or economists calculating the cost of a failed merger, experts have a vital role in helping the court understand technical issues to reach a fair and reasoned decision. But how do you pick the right expert for the case? How and when should you work with them? What makes expert evidence inadmissible? To answer these questions, we welcome Dan Daniele and Justine Smith from our Toronto office. Dan is a partner who practises in all areas of intellectual property, with specific experience in pharmaceutical patent litigation. Justine is an associate whose practice covers all areas of commercial and civil litigation.

CPD credits: This episode qualifies for 0.72 hours of Professionalism credit in Ontario and 0.70 hours of Substantive credit in British Columbia.

Transcript

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Transcript:

Ailsa Robertson  00:10
Welcome to Disputed, a Norton Rose Fulbright podcast. This episode is about working with experts, whether it's an engineer giving their view on the propensity of a pipeline to crack, or an economist analyzing the lost synergies from a failed merger, a chemist explaining the science behind a pharmaceutical patent, to a medical practitioner opining on the cause of injury. We as lawyers, need to understand all aspects of our client's case in order to advise appropriately, and the court has to understand the technical subject matter to reach a decision. So in complex commercial litigation, it's not surprising that a case can come down to a battle of the experts. But how do you pick the right expert for the case? How and when should you work with them? What can make their opinion inadmissible? And what do you do if it does not fit neatly with what you want to say? And even if you've managed to retain the world's leading expert, how can you be sure that they present their evidence in a way that helps the client put their best foot forward in the courtroom? To answer these questions and talk us through their expert experiences, we welcome Dan Daniele and Justine Smith, who are both based in our Toronto office. Dan is a partner who practices in all areas of intellectual property including copyright, trademarks, and patents, with particular experience in pharmaceutical patent litigation. Justine is an associate and her practice covers all areas of commercial and civil litigation. We should note that this discussion is from the perspective of Ontario and federal jurisdictions. And there are some subtle differences when it comes to rules dealing with experts in other provinces that we don't go into in this episode. But, if you have any questions about this topic, please email us at disputed@nortonrosefulbright.com. 

Hey Dan, Justine, welcome to the podcast, and thank you for joining us.

Justine Smith  02:06
Thanks for having us. Really excited to be here. 

Dan Daniele  02:08
Yeah, I agree. Thank you for having us.

Ailsa Robertson  02:09
Okay, let's start with the basic question. Can you please provide an overview of the role of an expert in litigation and how you both encounter them in your practice?

Justine Smith  02:19
Sure. So happy to start things off, really, an expert's role is to provide evidence that will prove your client's case, but they're providing that evidence in a way that is going to be independent and objective. You might also use an expert, not just for proving your case, but also for understanding and opposing the other party's case. And whether that's through cross-examination, or whether that's just determining how you're going to address something at trial and what needs to be assessed. So kind of a helpful tool, not just in the actual proof aspect, but also in rebuttal.

Dan Daniele  02:51
Yeah and then, you know, I'll add that, in, especially my field and intellectual property, and particularly pharmaceutical patent litigation, we often retain experts to really help the court understand what a patent is about, how would it be understood through the eyes of a person skilled in the art. How would that person understand the claims. And so the expert’s role is really vital in those areas because, you know, oftentimes, the court doesn't have the experience in the particular area of science. And so they really need that expert to help them come to their opinion.

Andrew McCoomb  03:26
That's ultimately the point on proof cases, when you're having an expert testify, a big chunk of it, and I don't know whether it's 25%, or 75%, it’s going to change in every given case, but a big chunk of that role is just about getting the court the information it needs to do its job, right, about whether it's product liability, or if it's a valuation of a property, or if it's thinking about complex securities or financial instruments, getting them up that learning curve. The other half of it, some unspecified percentage is about pushing the cord over that line to convince them of whatever it is that a client wants to try to convince them on, right?

Justine Smith  04:07
Yeah, I think you touched on a really key aspect of that, Andrew. You're really looking at something that has to be necessary to assist the trier of fact it's relevant and necessary. Those are huge parts to when you would be actually engaging an expert and putting them before the court.

Ailsa Robertson  04:22
And what about the use of experts when you yourself need some assistance in understanding the issues that are at play? Because particularly with complex commercial litigation, and obviously intellectual property, there's some very technical areas that in order to make an effective assessment of the client's case, you need the initial kind of consultation, perhaps on those issues.

Dan Daniele  04:42
We use experts for a number of different reasons. For example, there are litigation experts; we will use those experts to actually testify in court usually provide an expert opinion. And those experts are sort of special because they need to comply with certain obligations in the rules of civil procedure. That their opinion be fair, objective and non-partisan, and that their report provide a number of different things. There's also participant experts, these are witnesses whose evidence sort of derived from their observations or involvement in the underlying facts. And those witnesses don't need to comply with any rules. And lastly, there are non-party experts. And those would be hired, for example, by a non-party such as you know, an accident benefits insurer. The other thing is that, in my field, particularly, we often hire experts who will never testify in court. And they will just help us behind the scenes, sort of like a consultant. And they're really helpful because they can provide you sort of a non-objective, a partisan opinion, because they won't have to testify in court, they will be able to help you in a more understandable way behind the scenes.

Ailsa Robertson  05:58
There's various different types of experts, and some of them are subject to the rules, and some of them might not be, so how then do you choose an expert? And how do you go about choosing an appropriate expert for the issues at hand?

Dan Daniele  06:13
I think the most important thing, based on my many years now of practice, is really you have to interview an expert right off the bat. It's so important to understand where your experts coming from? What are their qualifications and what opinions are they going to give you before they understand who you're representing, for example, what might be the patent at issue, because ultimately, I find that experts under sort of rigorous cross-examination at trial will always revert back to their true opinion. And you only really get their true opinion if you get that right up front. So I think that's one of the most important things to do, is do your homework on the expert, before you actually engage them.

Andrew McCoomb  06:55
There's a bunch of pieces in that homework, right? So just unpacking right, so let’s start with qualifications, what do they have on paper, because if you've got an expert on your side, and then you've got an expert on the other side, one of the first places a judge is going to look is respective CVs and where did they go into university? And what is their actual expertise in? And how close to on point is it? And then you've got history, right? What else have they done? What kind of cases have they testified in before, if they've testified? How were their opinions treated by the courts? And then you've got their demeanor and what kind of witness are they going to be? Because I'm sure you guys have dealt with this before, how do they communicate ideas? I've dealt with experts who are supremely, like literally the most qualified person in the world on a certain subject, but to get information out of them on that subject requires its own expert. And then-- and then you get to that last point, Dan, which I think ultimately is the most important one, which is, what are they going to say when they're testifying? And are they going under pressure to revert back to their initial instinct, which presumably, if you're talking to them is, in some way supportive of your thesis? I mean, there's so many factors that end up in this pot, as you decide who the right person is. Are there others that you can think of? And how do you kind of sort through all that stuff?

Dan Daniele  08:23
Well, one thing I would add is that all of those factors are--,  become so much more important when you think that, in many cases, a decision will turn on the experts and cases become a battle of the experts. So whose expert is more qualified, whose expert withstood more cross-examination, who was more cogent before the court? And so, that's why it really goes back to that initial interview. And the more you can sort of dig up, the better. And one way of looking at it, Andrew, is, I want to approach a potential expert that I'm going to hire, that the client’s gonna hire, in the same way that I would look to cross-examine an opposing expert. All the things that I might want to use to cross-examine an opposing expert, I want to equally look to my expert for those things, to see what -- what skeletons really are in the closet, so to speak. Because I think that's really important to do up front. So there are less surprises along the way.

Ailsa Robertson  09:23
Is it the case sometimes, in your areas, the client will be closer to the technicalities of them than you are, and the client may have an idea of who they think is an appropriate expert. How do you manage that dynamic with the client to an extent recommending an expert or wanting to work with a particular expert?

Justine Smith  09:40
So some clients they will have preferences with experts that they've worked with before. Especially when you're getting into more technical fields I find that seems to be the case, or your client might have a recommendation someone that they know from another matter that they've worked with previously. We absolutely, you want to explore those. Your client does have a special sort of insight into the engagement that can assist in actually retaining-- finding and retaining that expert. And from a objectivity perspective, it's not a-- it's really not an issue so long as you explore those conflicts thoroughly on your own, and you satisfy yourself that, you know, there's not an issue of bias here, and that the expert can still provide that independent, objective evidence that you want and that you need.

Dan Daniele  10:23
I was just going to add that it's important once you do hire the expert, to watch the relationship, maintain the relationship between the expert and the client. And in my opinion, you want to minimize that contact directly between a client and an expert, because ultimately, the expert does have to be fair, objective, nonpartisan, and so the more removed they are from the client, the more they can really in their head fulfill that role of being that objective expert.

Andrew McCoomb  10:56
And those communications are potentially producible or disclosable in the context of the expert fulfilling his or her duty to a court. So that's a bit of Pandora's box. I mean, one of the things, I presume, is that you want to channel the communication so that you know what they are. And everyone always tries to keep it-- a fairly tight leash on-- on the report or opinion generation process along the way. And to your comments Justine, there's always that temptation to worry that if there's a repeat engagement relationship between a client and an expert that somewhere down the road, someone on cross-examination is going to be able to point to that and say, but you know, isn't it true that you've worked with this client 15 times in the last 10 years, and you've always produced a report, supportive of their position and litigation? That question is always sort of floating around in the back of your mind, every time a client says we think we should work with this person. And how to deal with that, I guess, as you say, is just a function of establishing that really, the basis of that relationship is because this person's good at their job. And they, like we are, are correct about things. It's not a question of them being in anybody's pocket.

Ailsa Robertson  12:13
I have a question, choosing the type of expert in place, because I think Ontario has a limit on the number of experts that can be called, I believe it's three. And yet there are no end to the types of experts that can be out there. I'm just wondering, in your practices, when there is no end to the type of issue perhaps that you could call an expert on. How do you select the most important issues for expert evidence?

Dan Daniele  12:35
Okay, I can start with that. There is a limit on the number of experts, you know, in IP cases, sometimes we do exceed that limit, and we get leave of the court to hire more, because sometimes the issues are just so complex, for example, if you have infringement and validity issues of a patent to deal with, but at the same time, you have damages to deal with, so your needing maybe an economist, an accountant, maybe there's testing involved in the case, and now you need an testing expert. So ultimately, I think it's important to really tailor your expert evidence, because the more experts you put forward, the more risk you're adding to your client's case. Yes, you need their assistance, but every single expert has to withstand rigorous cross-examination, has to be credible before the court. And so you really want to avoid any duplication, because that can lead to inconsistencies if one of your experts sort of go south on an issue, that may hurt the other expert’s opinion. So I think really understanding what it is exactly you need to prove. And picking the best expert for that and really avoiding having too many people say the same thing.

Justine Smith  13:43
Yeah, I'd also add to that. If you're on a file, and you're thinking, you know, I need seven experts to prove this. I think that should be a bit of a gut check for yourself to say, am I actually looking at what the necessary expert evidence is here? Or am I overcomplicating this issue? Is this something that actually requires expert evidence and deeply consider that at the front end when you're starting to look at who you might retain and potentially are there areas where your expert can cover more than one issue. Are they related issues and is that within their scope? And just kind of when you're planning your approach with experts, you should be considering that type of thing as well.

Andrew McCoomb  14:16
So take us through the process of retaining an expert and tips and tricks and best practices for how to do the job right.

Justine Smith  14:24
Sure. So I think first and foremost, you want to, again, sit down and look at your case and say what exactly is the issue that I need an expert to consider? And what is the service that I need to provide? You'd want to be thinking about that point that Dan previously mentioned, is this going to be an expert that is going to be testifying and providing evidence in the litigation? Or is this a consulting expert? You want to look at that past history, you want to have those preliminary interviews with potential experts, explore things that you could see being an issue on cross-examination to see if that rules them out, if there's potentially a bias If there that exists that you might decide not to retain someone. You also want to look at, you know, the actual budget and the expert compensation. Is this someone who makes sense from a financial perspective? If not, like, do you need the expert with these types of qualifications on this case? And then finally, you want to look at, is counsel going to be retaining that expert? Or will the client be retaining that expert? And that's really something you'd be addressing in the engagement letter itself.

Ailsa Robertson  15:26
And just touching that last point, what is the significance of the client engaging the expert over the counsel doing so? And why do you need to be careful around that? 

Justine Smith  15:35
To me, it really goes to independence, I think it makes more sense for counsel to be the one retaining the expert through the engagement letter, that doesn't necessarily mean that you know, the billing is going to work that way. That's something that's going to vary client to client. But from an independence perspective, best practice would be that the counsel would be retaining the expert.

Dan Daniele  15:53
I agree, it really goes to the communication issue, really minimizing the direct contact between the client and the expert.

Ailsa Robertson  16:00
And one of the points, I think it was Dan mentioned earlier, it was testing the experts might want to do, and wonder if I could ask you a bit about the concept of spoliation. Because we've often had cases where experts before they give you any initial sense of what they might be thinking they want to do some testing on the subject matter beforehand. And often there'll be cases where the expert doesn't, or the client obviously doesn't want the other side to know that they're going to be doing this preliminary testing. So how do you manage that when an expert wants to carry out testing, there's a risk of spoliation and we don't want the other side to find out?

Dan Daniele  16:38
So I can answer that. We have had a number of cases where the parties have conducted testing. And you know, the federal court, for example, to ultimately rely on any testing, you need to you need to do what's called interparties testing. So you need to invite opposing counsel, invite the other side, to be able to witness the testing how it was conducted, allow them to bring their own expert, etcetera. And because of that, they will be able to see the results of any of that testing. And so often what parties do is they'll perform, you could call it skunk work testing or sort of preliminary testing, that usually people don't ever want to see the light of day. It is often protected by litigation privilege, as the courts have said, but you do have to be careful, for example, any facts a client learns through preliminary testing, independent of the testing itself, that are relevant to the case may be disclosable, for example, in discovery. If an expert is doing preliminary testing, and then is ultimately going to participate in the inter party testing with the other side, again, under cross-examination, the issue of the preliminary testing is something that may be disclosed. So oftentimes, when you're doing things like preliminary testing, you may want to hire, for example, a different expert or a different company to perform that, see what the results are and then you may want to go ahead and conduct the inter parties testing with your litigation expert.

Andrew McCoomb  18:01
And I guess potentially firewall the information from that process from your client, so that it wouldn't necessarily be disclosable, I mean, potentially, it's privileged. But to have an extra layer of protection, you probably want to stay away from sharing that information too broadly. 

Dan Daniele  18:19
Exactly.

Andrew McCoomb  18:29
So then you've got your expert retained. Take us through the process of working with your expert, and-- and what are the best practices for making sure you get the right result.

Dan Daniele  18:33
I think one of the most important things is, really to get a sort of oral opinion from your expert right off the bat, and really limit the written communications between your expert and also, for example, limit the number of drafts. You want your experts opinion to be formed fully. So that when it does come to the report, yes, you can assist in the drafting. But by that point, you'll have received the expert’s opinion, and so the expert can really say on cross-examination, yes, this reflects my opinion, it may not be every single word that I drafted. You know, for example, I've had experts back in the day who were in their 80s and, you know, they were cross-examined on, There's no way you typed this 100 page report, and they laughed on the stand and just said, Of course, I didn't, you know, it would take me 10 years to draft this and use some of the language but, ultimately, this reflects my opinion. And so that's the most important thing is to get the experts opinion, before you do any drafting. And to the extent an issue does come up, either with the report or a new fact is discovered. Just call your expert. People forget to use the telephone these days, because email is so easy, but you should always assume that any communication with an expert can be produced. You know, realistically it won't be, but you should always assume it does. And if you really go with that approach and that perspective in mind, I think that will go a long way to protecting any issues that may come up later.

Ailsa Robertson  20:01
And you touched on an interesting point there, which is the extent to which counsel was involved in the drafting of the expert report. I wonder if you could talk about that and how it links to being able to challenge expert evidence for improper influence.

Justine Smith  20:17
Sure. I can start, I think, from a bit of a more junior perspective of how I think I've seen this change a little bit. When I came into the firm, I remember being told by senior lawyers that you have to be so careful and we want to make sure that no one is under any type of impression at all, that we might be even involved a little bit in drafting this expert report. And I think now that people are a bit more comfortable with the 2015 ONCA decision, the Getahun decision, which really acknowledges that not only is it okay for counsel to be involved in the drafting, but it's actually essential for the court to have counsel’s proper influence in drafting these reports. So that means ensuring that it complies with the rules of evidence, ensuring that it's not going to, you know, the actual matter at issue, that's to be determined. That it's within the scope, and that it's written clearly and in a way that's comprehensible. You provide, I think, as Andrew was saying, sometimes you've got experts who were just so well-versed in a certain topic, and it's a topic that you and I in the ordinary course of life are never going to encounter, let alone in any particular detail. So you need to have them be able to communicate this in a way that actually makes sense. Even people who are practicing kind of a, I guess, more verbose ways of communicating like lawyers and judges. So you want to make sure that everything is very clear, and that, further to that, that everything is clearly stated that they're relying upon whether that's facts or assumptions as well.

Dan Daniele  21:41
Yeah, and I'll just add that, you know, in federal court, for example, while it is true that for the most part, you'll never have to produce drafts of an expert report, you never know how things are going to shake out at trial with your expert under cross-examination. For example, let's-- let's say a number of drafts were exchanged, and an opinion was changed by the expert at a certain point, if at cross-examination, they say, oh, you know, they mentioned an earlier draft, and they had a different opinion, you know, that may very well be producible at that point, regardless of any influence of counsel. I was once, just to give you an example, this was many years ago, I guess, one of the expert, this was probably counsel, I don't think it was the expert, but I guess counsel left the version number of the document on the bottom, and it was something like version 21. And, you know, that came up in the cross-examination, like were there 21 versions of this draft report? And you know, the expert didn't know, obviously, maybe it was just between counsel, and they were creating a lot of versions. And they said, well, maybe there were drafts, but it's all my opinion, you know, ultimately it didn't really go anywhere. But you can see just something simple like that can raise an issue. So you do have to be careful.

Andrew McCoomb  22:51
So Justine made reference a second ago to facts and assumptions. What-- what are the key pieces that need to go into an expert report and in order to satisfy a court that it has all the constituent parts?

Justine Smith  22:53
So in Ontario, that's actually legislated. It's in Rule 53 and you can get into this a little bit later. But something you need to see with expert reports is this acknowledgement that the expert has an awareness of what their duty to the court is, and that's-- that same I'm going to, I guess I'll say this 100 times today, but they have to be independent, they have to be objective. And so set out in Rule 53, there’s also certain requirements of what has to go into the-- the expert report as well. So this is the instructions that the expert received. Factual assumptions that the opinion is based on, description of the research and the documents that were relied upon that the expert used in forming their opinion. And you'll find in practice, this doesn't always set out quite so clearly, or maybe in as much detail as you might want to see. And then part of your job as counsel, when you're getting reports from the other side is looking at, you know, has this actually been provided? Are there-- Is it clear what documents were relied upon? Or is there some catch-all phrasing used, do you have to chase that? And then from there being organized, so once you've chased, you actually have it when it comes to kind of the pressure point at trial, you have all the evidence you need to rebut or cross on the other report as well.

Dan Daniele  24:14
I think it's really important that the expert looks at their duty, understands it, and really substantiates everything in their expert report. I can't tell you how many times I've witnessed a cross-examination of an expert who came to an important opinion and didn't include it in the report, even though they relied on it, or they cite an important proposition and there's no reference to support it. Or, for example, they had somebody else conduct a portion of the, you know, let's say counting that witness report --maybe they had someone prepare an Excel spreadsheet, and they don't say that even though it was under their supervision, and that's completely proper and allowable. They don't mention it and as soon as they don't mention something, you can just imagine how the cross-examination goes. Oh, this expert is hiding things. They're not complying with their duty. And it becomes really embarrassing for something that is so simple. And if you-- you know, the expert was just more fulsome and really sourced their work along the way, they can avoid a lot of those hang-ups at trial.

Andrew McCoomb  25:18
You really want to have someone as-- as often as you can, who's naturally cynical, and skeptical. That's just that's been my experience, right? And when they can come in, and not necessarily buy everything you're selling, and ask the hard questions and dig and dig and dig, just like you were saying, to have an expert as a consulting expert who can help you answer questions, you can still have a testifying expert, who at the end of the day, you know what their position is, in principle, but when it comes to answering the granular questions about the factual background, that they need, that they really push hard to make sure they satisfy themselves. It's those people who help counsel sleep at night, because you know, that they've really put in the work, turned over every stone. I mean, that's our job, too, of course. But experts who know the field better than we do, in whatever subject matter it is, they really provide a big boost when they go and find things. And I don't know if you guys have had this experience, but I have, where we have an expert come in and it's halfway through a case and discoveries already happened in certain respects. And they started asking questions that open up new avenues in a case because they ask for documents that you didn't think to ask for, and now you find something that's compelling, or potentially something that you need to flag from a risk perspective. But having that-- that skeptical, curious, not afraid to cause a bit of difficulty by asking questions sort of expert can be a huge boost to your case when you find them.

Dan Daniele  26:48
Yeah, totally agree with that, there's been a number of times where we've had experts who raise an issue based on documents they've looked at. And all of a sudden, we've had to amend pleadings to raise an entirely new allegation. And all of a sudden, that expert is providing an affidavit in support of a motion to make amendments. And that happens frequently. And that just goes to show that there are many experts out there who can really advance your client's case and point out weaknesses along the way. And the better the expert, the more success you'll have along the way.

Ailsa Robertson  27:22
The flip side of it, as far as the experts are very much not lawyers, right. And so there's all the requirements of the report that we're talking about, and making sure that everything is backed up, there isn't a conclusion that's drawn, there isn't an opinion outside of their expertise in their report. I mean, that is something that if you're not legally trained,that's not going to come naturally to you. I think it also speaks to me talking about having an expert cross-examined on the stand, that it actually can be psychologically really quite traumatic for-- for these individuals, particularly when they are, it is their area of expertise and they're suddenly mocked over something that is a minor thing, but it's dramatized in the courtrooms. And you could have, as Andrew mentioned earlier, one of the most literally the world expert in a particular topic, and they just fall to pieces on the stand, because there's such a huge element of is-- is the presentation of the evidence. And so given the importance of the presentation, I wonder if you could speak to the extent to which you can not-- not coach but help train, help bring an expert out of their shell, such that they do everybody justice and how they present their evidence at trial.

Justine Smith  28:24
I think a large part of that is really those calls you're having with your expert throughout the file as you're whether that's at the front set, and you're discussing, you know, what actually is going to go into that report or whether you're reading the report and providing kind of like, your initial thoughts, or maybe like, what could be adjusted or kind of gaps in the opinion that need to be filled. Getting into those conversations starts really a natural discussion of what should be included, and how the expert can communicate that really well in these types of things, like Zoom-to-Zoom or face-to-face conversations. And that's where I find the clarity really starts to come out, and then you can build that into the report.

Dan Daniele  29:03
Yeah, and one of the most important things that you need to do with your expert, when you're preparing them for trial, is to cross-examine them and not just, you know, cross-examine them on a few issues and give them a flavour, but really stepped in the shoes of opposing counsel and go after your own expert, go after their credibility, try to make them feel uncomfortable. I know that sounds a little weird, but you really want them to get a flavour of what potentially is coming on the stand so that they're ready. They're ready to address an inconsistency. They know how to stay on topic. It's important to review the instructions, the legal instructions that you give your expert because you're right, oftentimes, especially in patent law, there are really complex legal instructions that are given to an expert for example, on different grounds of invalidity. And that can be confusing for an expert. You know, what does it mean that something is self-evident that something's obvious, something's overbroad and they can get really tripped up on those. And so the clearer you are in your instructions, when you review with them, the better. And your expert, while they're not a legal expert, they really do need to understand the legal instructions as best they can, because they're providing their opinion within that framework. And so a lot of it is on the lawyers and how you phrase those instructions. And I've seen people get cross-examined on mandates in their report and ultimately make submissions before the judge at the end of the day that the expert just was given the wrong facts or was given the wrong instruction. And so don't worry, the expert’s credible, but they their opinion is not relevant, because counsel didn't appropriately give them the question.

Andrew McCoomb  30:40
That takes us to the ultimate point, if we as counsel do our jobs, right, and get the case properly through discovery and properly through all the procedural pitfalls and get it to trial and get the fact evidence in, and at some point in time, if everything's been done correctly, a complex case gets turned over to the experts, for the most part, assuming there's not too much of a fight on the facts themselves, which is a big assumption, but leave that aside for now. Take us through I mean, there's a bunch of different things that can still go wrong that you just touched on in that in that answer, Dan. We've got admissibility, we've got qualification, and then we've got credibility and actual merits assessment of an expert opinion. Take us through navigating those pitfalls at trial with your expert to make sure that the opinion is upheld as something that's valid and properly in the court and then that you can carry the day? 

Dan Daniele  31:34
Sure, why don't I start with qualification? Because it’s one of the things you mentioned, it's obviously one of the first things you're going to do is to try to qualify your expert. I think, obviously, it's important that you walk your expert through their qualifications right off the bat, unless, you know, the expert qualifications agreed to by the other side, you know, but even in that case, it's helpful to sort of point out the most important things about your expert to the court. And also to tailor exactly how you're going to have them qualified, you don't want to over qualify your expert, and then all of a sudden, through cross-examination, it's revealed that they're actually not an expert in many of those areas, which can be embarrassing. So you want to really provide a qualification that matches your expertise. I think it's really important to lead them in that case. And so if they've authored an important article, you know, go right to it, ask them about that article, don't let them fish around for it, really pinpoint the-- the things that will make your expert shine.

Justine Smith  32:35
I think you touched on one point that, again, as someone more junior, I hadn't thought about until I started working with experts more, and that’s really outlining what you're proposing them to be qualified in, and the phrasing of that, especially again, if you're coming to some kind of agreement with the other side about putting that expert forward, you want to make sure like you've covered it off, and that it's clear, you don't want to get caught in a situation where you're putting someone forward as being qualified, and then the parties have different understandings of what that actually means in writing.

Dan Daniele  33:02
Yeah, and I think, you know, once you've qualified your expert, obviously, you're going to walk your expert through the-- the report. So you'll do an in-chief examination, you don't want the expert to read the report, that's really important. The report is there, the judge has probably read it. And it's, you know, in many of my cases, it's probably boring anyways to-- to read it out loud. So really, you're gonna go to the parts that are most important and you're going to highlight those. And one thing that is important to do right off the bat is correct mistakes, they are oftentimes going to happen, it's happened to me many times when there's a mistake, most of the times they're inconsequential, but it's still important that you correct them. And if they are consequential, you definitely need to correct them because someone is going to point it out in cross-examination. And the more you can blunt it at the start, the better. And you should really practice with your expert, what to do in the event of a mistake and how to approach it. Because one things that experts tend to do in cross-examination is, if they're confronted with a mistake, they don't want to admit it, they think that may be bad, their evidence will be thrown out. And all of a sudden your expert is-- is refusing to admit what is something so simple, maybe it's a simple mistake in an Excel sheet that has no consequence whatsoever, and the expert just refuses to correct it, and that doesn't look so good in front of a judge. And oftentimes, you know, you're-- you're watching your expert thinking like, Just agree with it, you know, agree and move on, like this is-- this has nothing to do with the case. So really preparing your expert for what happens in the event of a mistake or an inconsistency, how they should approach that is really important and it's important to your experts credibility because experts do sometimes become rigid in their opinion. You know, sometimes they feel like they're being attacked in cross-examination. And so they will retreat to an area of I'm not going to agree with anything opposing counsel says, and they just look unrealistic. And I always find that an expert who acknowledges mistakes acknowledges corrections need to be made where appropriate, really come off as sensible, fair and objective for their clients.

Andrew McCoomb  35:07
So you've got an expert who's now qualified, their report is admissible, and now they're exposed to cross-examination, which is really the main events in the experts trial lifecycle. How do you go about the exercise of getting ready for both sides, both on offense and defense? How do you steal somebody's nerves for this exercise that Ailsa has already alluded to as being very, very mentally taxing, and how do you how do you get everybody set to put their best foot forward?

Justine Smith  35:39
I think Dan touched on it a bit already. You do want to run these kinds of fake cross-examinations on your experts to get them prepared for what you as counsel could see being a potential issue. Or if even-- if even if it's a kind of a silly point, like you get some funny questions on conflicts based on like a funding received from someone who's necessarily has to have funding for their for their work, and whether that's a potential conflict of interest, some will really fly off the page of areas that you know, are going to need to be prepped for, for cross-examination, or that you might cross-examine on. Other pieces might be what we were talking about earlier, areas where your expert identifies kind of holes in their site case that you might want to cross on. Or they might know that, you know, there's something that they've opined and there could be a potential issue when they're like raised as a concern, and how are we going to address this? Or what if I get asked this, so you want to keep that open line of communication with your experts about what they're concerned about, to kind of ease their nerves and make it a smoother process for them, but also, avoid getting surprised on cross-examination.

Dan Daniele  36:41
You know, one of the things you're going to cross-examine an expert on typically is bias and independence. Obviously, every case you'll cross-examine on substance, but bias is really important. And the way an expert presents their report can reveal some biases. First, you want to look at is there a lack of objectivity from the expert? Is the expert being argumentative or defensive? We already talked about that, if the expert comes across too unreasonable, it won't look good in front of the judge. You also want to look - has the expert drawn legal conclusions, you know, it's not an expert’s role to arrive at the final conclusion, they are there to assist the trier of fact in arriving at this conclusions. And some experts really want to give their opinion on the final case, on the final merits, and they become married to the idea of winning, and the case. And that can really go to their-- their objectivity. And you can really reveal that during cross-examination. So-- so look out for words that an expert uses when they are drawing conclusions, are they going too far, and stepping into the domain of the trier of fact? The other thing you want to look at when you're reviewing a report is, has the expert gone outside your area of expertise? So you'll have to scrutinize the expert’s CV and all of their publications, any statements they made in prior testimony and see are they are they being inconsistent? Or have they said anything that can assist you now. Again, look for baldly stated conclusions, this one is classic, experts will-- will have this really nice statement in a paragraph and-- and you think, wow, that sounds really great. And all of a sudden, there's no footnote. It's not cited anywhere. And so that begs the question, is this accepted in the literature? Did you just make this up? Is this your own view? Why are you an expert? That can really lead to a lot of questions. So looking for things like footnotes, sources, is really important. And remember, an expert has to comply with the rules and state any documents that they relied upon. So you want to review that. And obviously, you want to look to see whether the expert failed to engage with relevant literature. If your expert is using an approach, what has the academic literature, what have other experts said about that approach? Has there been a ton of articles saying we reject this approach, it's unreliable, there are more accurate ones? And so that's a really great area for cross-examination, or is it a generally accepted model that everybody agrees on and it's not contentious. The final thing I would say, is really look for indications that the experts become, I think, unwilling to modify their opinion. So if you are cross examining, and you noticing that the expert is not wanting to correct any mistakes, I think you can really push that. And sometimes when you're examining a witness, they may say things that are not helpful to you. But the way they say it may really rub off on the trial judge, they may not appear very well. And so they just may not be believable. So you don't have to worry always about what comes out of someone's mouth, but how they say it is important as well.

Andrew McCoomb  39:35
So much of that exercise is about really dramatizing the problems and the conflicts in the expert’s report that are probably already been, either they're like evident just from reading it, like you say where there's not a footnote or something, or they're evident from the comparative exercise of looking at the two expert reports together, and you're really just trying to draw attention to it. We had a case, a long time ago that I worked on, involving the price of an infrastructure asset in Toronto. We had competing comparable properties that were used to provide a value for it. And the other side, one of the comparable properties that they used was a similar asset located in the middle of the Ural Mountains in Russia. And they tried to pass this off as it was something similar. And we produce these color maps to show with a star where exactly it was, as compared to the, you know, and it's not rocket science, but it's just trying to draw attention to the silliness of something, some assumption that someone used, or some comparable asset that someone used, or whatever it's going to be, is just trying to add amplitude to these issues so that a trier of fact can make sure that nothing gets past them at the end of the day.

Dan Daniele  40:51
Yeah, Andrew, one of the things that I always find helpful is to have someone outside of the case, you know, in and review an expert report, in my case, it would be someone with zero science background, maybe pretender. They're the judge, and do they understand what's going on? Do they need more pictures to help them? You know, people forget that diagrams are very helpful and judges in the past, in particular, actually, the Supreme Court of Canada in famous patent cases, have relied on complicated diagrams, but that try to really simplify the area of science in order to understand what's going on how things are working. So the use of visuals can really be a really good aid, and understanding an expert report and having someone outside the process review something can really help in-- in making sure that the argument is cogent, clear, concise, and that you haven't left no stone unturned.

Andrew McCoomb  41:50
Dan, Justine, this has been super insightful. And I think a really good summary of the landscape on working with expert witnesses. Obviously, you guys have a ton of practice in it, and so it's really helpful to have your insight. So thank you very much for being on the podcast. 

Justine Smith  42:06
Thanks for having us.

Dan Daniele  42:07
Thanks for having us.

Ailsa Robertson  42:10
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