Lawyers' ability to consult experts throughout process is critical

Feb 12, 2015 By Matthew Friedberg

A recent Ontario Court of Appeal ruling that reaffirms the right for counsel to consult with experts about draft reports in litigation proceedings secures a critical part of the court process, says Toronto criminal lawyer Matthew Friedberg.

“I think it’s a well reasoned and clarifying ruling – there are a lot of inherent problems with the alternative,” he tells “The Ontario Court of Appeal ruling will really give some guidance and certainty for lawyers.”

In Moore v. Getahun, 2015 ONCA 55 (CanLII), the appellate court rejected a lower’s court’s proclamation that the practice of consultation between counsel and expert witnesses to review draft reports must end.

“Leaving the expert witness entirely to his or her own devices, or requiring all changes 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,” says the higher court.

The Court of Appeal’s Justice Robert Sharpe went on to say that such a rule would encourage the hiring of “shadow experts” to advise counsel, which would be “an incentive to jettison rather than edit and improve badly drafted reports, causing added cost and delay.

“Precluding consultation would also encourage the use of those expert witnesses who make a career of testifying in court and who are often perceived to be hired guns likely to offer partisan opinions, as these expert witnesses may require less guidance and preparation,” says the judge. “In my respectful view, the changes suggested by the trial judge would not be in the interests of justice and would frustrate the timely and cost-effective adjudication of civil disputes.”

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