The first instalment in an occasional series

#1 - Retain first, ask questions later

Expert evidence can play a huge role in proving/refuting a claim yet, on occasion, counsel will retain an expert based on only a superficial vetting of his/her suitability to the tasks at hand in the particular litigation. If you are learning about your expert's background the night before the trial starts, you are in a bad place. Worse still is the circumstance where you are learning about your expert during his/her cross-examination.

Counsel will be familiar with some of the common, objective criteria used to select an expert. These considerations have been referenced in various court cases. For example, in Tavernese v. Economical Mutual Insurance1the court noted:

"When assessing the qualifications of a proposed expert, trial judges regularly consider factors such as the proposed witness's professional qualifications, her actual experience, her participation or membership in professional associations, the nature and extent of her publications, her involvement in teaching, her involvement in courses or conferences in the field and her efforts to keep current with the literature in the field and whether or not the witness has previously been qualified to testify as an expert in the area."

Further to these points, here are some other things to consider:

1. How can the expert's experience provide a leg up in assessing the matters at issue in your case? Past experience in an industry or with a particular type of claim can be of value, particularly where there has been a lot of decided court cases commenting on calculation issues/methodology idiosyncrasies -certain types of cases have nuances that may not be apparent to inexperienced experts.

For example, courts have established particular guidelines to consider in quantifying financial losses in fiduciary duty claims involving stolen corporate opportunities. Having knowledge of these issues before beginning the current analysis can streamline the process undertaken to quantify the financial loss.

2. Has the expert provided testimony in other cases? What did the court say about the expert's evidence? In my view, while the outcome of the matter is of interest, the primary focus should be on the court's view of the expert's analysis and conclusions as well as on his/her conduct during the proceedings, as it is these issues that can have an effect on the expert's perceived credibility.

3. Have any of your peers worked with the expert you are considering? What was their experience (assuming you trust their judgement)? Anecdotal information is not always reliable but if several peers have the same observations about a candidate this information may be useful as one of many inputs into your deliberations.

4. Has the expert been active in social media? Is there anything of concern in these postings? Those Facebook postings of the high school reunion may have been funny at the time but will appear less so during a cross examination.

5. Has the expert published articles on the same/similar issues as are in dispute in your case? What are the implications for the position you are taking?

6. Does the expert's work philosophy mesh with your expectations? For example, is the expert hands-on during the fieldwork? If other staff will be involved, does the expert have a good supporting cast?

7. Counsel may also gain comfort based on the individual's association with a reputable firm. That is not to say that sole practitioners are less worthy of consideration, but firms that have developed a good reputation in the industry are certain to guard that reputation and that includes hiring and retaining top talent.

Another issue to consider in the selection process is the anticipated cost of the expert's work. Costs can be assessed based on the hourly charge rates of the expert and his/her staff, or based on the expert's fee estimate to complete the assignment.

Where the scope of the case will expand or contract based on findings as the fieldwork proceeds, it may not be practical for the expert to provide a meaningful fee estimate before beginning the fieldwork. In these circumstances the expert may initially break the assignment into phases and provide fee estimates (for phases of the work) at various times during the assignment.

One word of caution - if cost is a major issue in your deliberations, make sure you are comparing apples to apples. Fee estimates are typically based on the estimated number of hours required to complete the assignment multiplied by the applicable hourly rates. To the extent a lower fee estimate is based on less hours, before you choose the low cost provider it is important that you assess why one expert is of the view that less hours are required to complete the tasks. Is the low-cost expert missing important issues or cutting corners to provide an attractive fee estimate? Or is the higher cost expert providing you with both "belt and suspenders". Whatever you conclude, the primary concern should be on the implications for proving your case.

In conclusion one may consider the sage words of a "60's" icon - "Castles made of sand fall in the sea ... eventually."2


1 2009 Carswell Ont 3204.

2 James Marshall Hendrix.