Should the Court Intervene in Expert Witness Management?

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The pre-trial management by the court of expert witnesses and the evidence they are to prepare can be a tricky issue for judges and lawyers. On the one hand, there is the view that parties should be free to run a case in the manner they choose, on the basis that lawyers have (or should have) a better understanding of their matter than the court. On the other hand, there is the idea that intervention by the court, in the form of appointing an expert, can narrow the real issues in dispute and help manage time and costs, in accordance with the court’s overriding purpose of just, quick and efficient resolution of matters.

The Benefits of Case Management:
Supporting this second viewpoint, it is not uncommon for lawyers to brief an expert with questions and assumed facts that reflect only their client’s view of the case. This can lead to genuine issues in a dispute not being properly considered by the expert. In situations such as this, case management by the court, for example deciding on a list of questions to be asked of all the experts involved, can save time and money, as well as serve to better assist the court in deciding the issues for the experts to address. For the same reasons, joint expert reports that identify the areas of agreement and disagreement between the experts can be more helpful to the court than competing experts on each side.

Expert Shopping:
Some lawyers who don’t get the opinion they hoped for from one expert will then instruct another, and another, until they get the opinion they want. Alternatively, they may take the approach of ‘throwing experts at the matter’ by using several experts to give essentially the same information, in the hope that it will strengthen their client’s case (spoiler: it doesn’t).

In these situations, a court’s intervention to limit the use of experts can be very useful. Also, in large and complex matters, where it is clear from the beginning that numerous experts will need to give evidence (e.g. medical, engineering or class actions), the court’s intervention to case manage the experts more directly can lead to a more expeditious trial.

Ultimately, each matter will require its own way of managing experts. Good lawyers know how and when to deploy expert evidence (including knowing whether it is actually necessary) so as to best assist the court. Similarly, good judges will know when to step in to ensure that the parties involved stay on track, for a just resolution.

By Rhett Walton

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