One particular Ontario Superior Court judge (with whom we are more than a little familiar) has been very vocal about the current use of expert witnesses to help bolster litigants’ cases. A plaintiff finds an expert to bolster the plaintiff’s case; the defendant finds an expert to bolster the defendant’s case – and the litigation continues for years. The problem – at least as this judge sees it – is that often the experts are not independent; rather, they are “hired guns” who support the position of the party who retains them.
In many cases that she pre-tries, she has proposed that the parties jointly agree upon one expert, who is truly independent and can give an unbiased opinion. Of course, a party does not have to accept that opinion, but it goes a long way towards settlement if the party knows that an opinion has been independently given. Indeed, it would be even better if the parties jointly engaged an expert before they spent a huge amount of time and money on the litigation. For the litigants, early settlement is better than late settlement; for some lawyers, not so much.
This concept is not unique. It was used in Willem Vander Meer Holdings Inc. v. Thomas Terry Richardson, a 2019 decision of the Ontario Superior Court of Justice.
In this case, on his own initiative, a pretrial judge proposed that he appoint an expert to provide an opinion to the parties dealing with the value and applicability of extras that a contractor was claiming. The judge adjourned the pretrial to allow counsel to canvas the type of expert needed and the selection of that expert. The parties were unable to agree and, accordingly, the judge, on the return of the pretrial, did the job for them.
He ordered that the contractor submit a list of three experts, knowledgeable about construction costs, and allowed the owner to choose one of them. He noted that the parties were to jointly retain the expert selected, whose fees would be paid from money that was already in court. The expert was to prepare a report and send it to the parties and the court. The report would be filed as evidence at the trial unless the trial judge ordered otherwise.
The judge then set a new date for a pretrial after the date set for delivery of the report.
We expect, and assume that the judge similarly expected, that, after having received a report from an independent expert, the parties may have been more amenable to settle the action at the pretrial.
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Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.