The case of Moore v. Getahun (2015 ONCA 55) was recently released by the Ontario Court of Appeal. This was a decision very important to the personal injury lawyers in Ontario.
In the lower court decision of this case, the court criticized the practice of lawyers reviewing draft expert reports and holding conversations with and otherwise communicating with experts they retained on their files. In the court’s view, lawyers should not review or comment on draft reports prepared by experts as the views and comments of the lawyer could influence the outcome of the final report. Experts and lawyers were concerned with the comments of the Justice because it is common practice to discuss draft reports with experts and communicate with them. Draft reports are routinely prepared and then reviewed by lawyers.
The Court of Appeal held that the trial judge erred in concluding that it was improper for lawyers to assist an expert witness in the preparation of the expert’s report. In holding this, Justice Sharpe stated that “the ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses”. He went on to state that “it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports.” In addition, Justice Sharpe writing for the majority of the Court of Appeal panel added that “Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.”
Do parties need to disclose on an ongoing basis consultations regarding draft reports prepared by experts? On this issue Justice Sharpe held that “absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and expert witnesses.”
In conclusion, the Court of Appeal stated that it is perfectly fine for lawyers to review draft reports with experts. Justice Sharpe did say that changes in the draft reports of expert witnesses should be routinely documented and disclosed to the other parties in the proceeding.
This Court of Appeal decision is an important decision for the personal injury lawyers because injury lawyers routinely retain many experts in conducting their client’s cases.
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Marc N. Quinn Ottawa injury and accident lawyer. Mquinn@pqtlaw.com 6513-315-4878