What communication is appropriate between experts and lawyers?

The Court of Appeal in Moore v. Getahun [2015] O.J. No. 398 has recently provided clarity as to whether lawyers can review draft expert reports and what is the appropriate degree of consultation between a lawyer and a testifying expert?

The issue arose in a medical malpractice case. The Court of Appeal for Ontario concluded that the trial judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert reports with their expert witnesses. According to Justice Sharpe, there was no basis for disturbing the well-established practice of counsel meeting with expert witnesses to review draft reports to ensure reports were framed in a comprehensible and responsive manner with respect to the relevant legal issues in a case.

Justice Sharpe emphasized 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. This would be difficult to achieve without engaging in communication with the expert as the report is being prepared.

Justice Sharpe also identified existing safeguards against the concern that permitting counsel to engage in an undocumented review and discussion of draft expert reports may interfere with the impartiality of expert witnesses. For example, cross-examination is an effective tool to deal with cases where there is suspicion that counsel may have improperly influenced an expert witness, and it is in the judge’s discretion to reject or limit the weight to be given to the evidence of an expert witness where there is evidence of a lack of independence or impartiality.

“Leaving the expert witness to his or her own devices, or requiring all challenges to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner”, Justice Sharpe noted.

With respect to documentation and disclosure of consultations regarding draft reports, according to Justice Sharpe, subject to certain exceptions, litigation privilege attaches to draft reports, notes and records of consultation between counsel and expert witnesses. Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced an expert so as to interfere with the expert’s duties of independence and objectivity, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Compelling production of drafts would inhibit careful preparation of the report and discourage parties from engaging experts to provide careful and dispassionate opinions and would instead encourage partisan and unbalanced reports.

The Ontario Court of Appeal’s decision reminds us that expert witnesses are there to help the trier of fact understand complex or technical issues, and the lawyers are an important part of that communication.