A Continuation of Experts in the Context of Estates – Hull on Estates # 99
This week on Hull on Estates, Craig and Diane continue the discussion regarding experts in the context of estates. The conversation touches primarily on choosing the expert and considerations for the report.
A Continuation of Experts in the Context of Estates – Hull on Estates Podcast #99
Diane Vieira: Hello and welcome to Hull on Estates. You’re listening to Episode #99 on Tuesday, February 26th, 2008.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills. Now, here are today’s hosts.
Diane Vieira: Hi and welcome to another episode of Hull on Estates. I’m Diane Vieira and I’m here with Craig Vander Zee.
Craig Vander Zee: Good morning Diane.
Diane Vieira: Hi Craig, how are you?
Craig Vander Zee: Great, thanks. And it’s my pleasure to be podcasting with you today. We’re going to continue on talking about experts in the context of estates. And last day, I had the pleasure of podcasting with Sarah Fitzpatrick on her initial podcast and it’s a treat to be dealing with this topic with you now. With Sarah, we had talked about experts in the context of estates, really in certain kinds of situations you might consider an expert, the timing of expert reports and other issues and considerations that come up with experts in the reports. Today what I thought we would focus on is considerations in really choosing the individual expert, not identifying the issue for the expert that’s needed. But really what might you consider in choosing an expert. And then touching upon considerations for the report itself.
Diane Vieira: So selecting an expert is probably the most critical decision that you have to make. And what should you be mindful of when choosing that expert?
Craig Vander Zee: Well, there’s certainly a number of factors. But right off the bat, you want to make sure that there’s no conflict of interest. When you’re retaining an expert, it may very well be that that expert unknowingly or unwittingly has already talked about the case with the other side. And perhaps it’s only through a thought out discussion that you identify who the parties are and who the counsel involved are and even former counsel because it may be that they’ve talked to former counsel if the matter’s gone on for quite some time. And certainly confirm that there’s no conflict of interest. What you don’t want to get into, and certainly I don’t want to find myself in this situation, is where I’ve retained an expert and then I find out after the expert report is delivered that the expert is conflicted out. And so that has to be your first or one of your very first considerations.
Diane Vieira: What about experience of the expert witness? What are you looking for in that regard? Do you want someone with Court experience, academic experience…
Craig Vander Zee: That would depend on the issue itself. Certainly experience and reputation go hand in hand when we’re looking at that consideration. And by that, I mean you want to know whether your expert is experienced in this area for a significant amount of time. Whether they may not be youngsters in terms of age, but they may not have been experts in this area for very long. Maybe they’ve had a change in career. And so you just want to discuss the background of your expert. Find out how long they have experience with this area and what kind of experience. And then dealing with the other point that you raised about Court time, you should also know whether they’ve been an expert before in another litigation proceeding. Perhaps one very much like this. Was their evidence accepted? Was it not accepted by a judge? And that can be something which may factor this particular witness as a candidate. Also with reputation, what is the reputation of your expert? And what are the comparison reputations? That is, how does the reputation of the expert that you intend on retaining or proposing to retain meet up against the likely expert for the other side. Maybe they’ve told you who the expert is, maybe they haven’t. But maybe there is a limited number of experts in this area and you have an idea as to who they might be choosing. And so you want to have a good handle on the reputation, not of just your expert, but how that will compare to the expert that might be used on the other side.
Diane Vieira: So you basically… you want to interview the expert witness to get all this information out and something else to consider is their availability. I know sometimes the date from when the report is needed and the date from when they may need to testify in Court is months and years. And depending on who your witness is, they may have… they may be teaching somewhere out of the country, they may be on a sabbatical, so that’s also something you have to discuss right from the beginning.
Craig Vander Zee: You’ve really hit on another consideration there which is the availability of your expert. And the example that you’ve given is a very good one. It could very well be that you’re thinking of retaining an expert at the beginning of a litigious matter but perhaps for strategic reasons, you may not require a report for some months. And then even beyond that, just because of the litigation steps and perhaps the timing of availability of trials if it were to ever go to trial… it may be months and even years down the road. You want to make sure that your expert at least understands the timing involved and when the report may very well come into play. And certainly as you’re approaching a trial, you want to make sure that your expert can be available. For example, if your expert is a professor and he or she is expecting to go on a secondment to a university in Europe for a couple of years. It sounds like an extreme example but if it would arise, you’d want to make sure that they knew that the trial is probably going to happen while they’re away. And then, you’d also have to factor in that you’d have to pay for their cost to come back and to give evidence of the trial. So availability is an important factor.
Diane Vieira: And when you’re first interviewing that witness, I guess you’re also judging their demeanour and imagining how they would be up there when they’re testifying.
Craig Vander Zee: And I think that that’s obviously an important factor. You want to assess your expert as a witness, not just as a professional who is going to give evidence. What is your view on how they’ll hold up on cross-examination? And that kind of interrelates with another point which is, kind of client fit and case fit for a matter. And by that I mean… is this the right expert? Even given that they might have tremendous experience and good credentials, are they the right expert for your case? Is this a case where you need an institutional type of expert coming from a large firm or can you have someone from a small firm? Where is this going to be heard? Do they have local reputation versus sort of a reputation on a provincial or national basis? It may very well be that having an expert with an excellent local reputation in the area where the Court proceeding is taking place may be better than an expert who also has a good reputation but isn’t known perhaps by a local counsel or even the judges that may be hearing it.
Diane Vieira: And what about the cost of retaining an expert?
Craig Vander Zee: Well that is something that you must deal with up front, for a number of reasons. One reason is, you need to know what it’s going to cost for the expert and the experts’ costs themselves can vary from expert to expert, depending on the demands that are being put on the expert, depending on the nature of the expert report that’s going to be, depending on the number of days the expert’s going to be at trial. So you’d like to establish all of that and you also have to do that, certainly I do it, so that my client knows up front what the cost of the expert’s going to be. And in doing that, I can tell the client, “Here, this is what the estimate is going to be. We certainly hope and trust that the cost will fit into this range.” But at least they have an idea going into the process the costs that are associated with the expert.
One thing just before we jump to the report is the subspecialties that an expert might have. It could very well be the case that your expert is… you’re retaining them for a certain area. But there could be other issues that might be coming up where you might be able to use their expertise if it’s called upon. So while you initially retain them for one issue, if they have subspecialties, it may be that they may become very useful in giving expert evidence in response to another report down the road. So that is an important factor. And again, just on the timing of the report, it’s important to convey to the expert when you expect a report to be given to you for review, because clearly, if there is the need for the opportunity to discuss with the expert the presentation of the report and have your client read it and perhaps comment on that, you want to give yourself enough time before you have to deliver it according to the Rules of Civil Procedure. And you don’t want to sort of brush up against that period of time that you have to deliver it within, if it’s not absolutely necessary. So this should be something that you take care of as soon as possible.
Before we get to the actual written report, there’s a couple of things that really from a common sense standpoint, at least I like to treat them as a common sense consideration, is the report when you get it. Is it thorough? Is it careful? Is it mainstream? Is this an extreme at the end of a spectrum type of opinion? Is that what you were expecting? So that is certainly a gauge you want to have in your mindset when you’re looking at an expert report. It’s also… is this a consensus type of report? Is this an expert that’s providing an opinion that, on the balance, would be what the majority of experts would say? Is this a report where the methodology is important? And if it is, is that methodology set out? Does it deal with the issue it needs to deal with? Are there professional differences of opinion? And this really touches upon what I was just mentioning about, is it a consensus report? And if it is a report where there are professional differences, I would want to discuss with the expert what those differences are, not just hone in on my own view of the case, but where I can expect to see some opposition because the expert is going to be cross-examined and I want to make sure that that’s covered off in the preparation of the expert. And it may very well be that we put in differences in the report if these are alternative arguments which have to be addressed. And if there are weak points on my issue, considering whether that should be in the report as well. So those are kinds of considerations that I like to consider from a general standpoint. They may seem a little bit vague because they are not formula driven, but it’s certainly things that I’m mindful of when I’m discussing what kind of report I’m expecting from the expert in terms of its presentation and format.
Diane Vieira: So in a way, you’re the first person to cross-examine your own expert witness.
Craig Vander Zee: Really, and you need to be able to do that to clearly understand the issue, I think, anyways. But then also so that you know how you’re going to attack the expert on the other side, assuming that there is one, and what to expect at a trial. And again, we’re getting these expert reports usually in the context of working towards a resolution of the matter. But ultimately, they have to be with the mindset of going before a judge at a trial. And if that is the case, you want to deal with both, not only the issues that are in your favour, but how are the issues not in your favour going to be dealt with and how are you going to deal with the other side.
Diane Vieira: Now in terms of the physical report itself, what are the reasons for including an executive summary and your academic credentials?
Craig Vander Zee: Well the C.V., the Curriculum Vitae, the academic credentials and sometimes they can be quite long, especially if you have a professor that’s done a lot of writing on a specific issue. One, you have to establish the credibility of your expert. And obviously that can be done by your examination-in-chief when you’re introducing your expert and going through their credentials. But oftentimes at trial, the Curriculum Vitae will be just handed in with the consent of both counsel and marked as an exhibit and then you hit the highlights and that allows the trier of fact to be able to go through and see some of the main points. And that’s not always an issue between counsel, if it’s recognized that both of these individuals are experts. If you’re not attacking the credentials of the other side and they’re not attacking yours, it’s just a difference of opinion. It may very well be that the C.V. is what’s handed up as well. Again, remembering that there’s no unqualified right or no qualified right, I should say, to file the report.
Diane Vieira: Okay.
Craig Vander Zee: But as an assistance to the Court, it can be frequently done with the consent of both counsel. And again, we’re not dealing in situations where there’s juries. Often a judge may want to see the report, if it’s a very technical issue, to help with understanding the two different methodologies. It may be that the experts both agree here are the two options the judge has, they just don’t agree on which one should follow. And so both counsel want to have before the Court what the particular methodologies are. And I guess I’m getting off point now from the C.V., but the C.V. can be handed up. Also you want to establish your credentials to the other side. Other counsel in the case they don’t know your expert and the other party before you get to a trial, so they know that you have a good expert and hopefully one that is well recognized. And then also on the formatting, I like to have an executive summary so that it’s clear what our point is upfront and easily understandable. It can be sometimes a case where, if it’s a complicated issue, if it’s an issue driven on a mathematical calculations as to what the rates of return ought to have been for certain products and present day value calculations, all of that coming into play where there’s perhaps an allegation of a malfeasance with an investment, then it may very well be the case that having the executive summary is the best way to get that point across to the other side. Again, at the back of my mind, if I want to have that report before the judge and it’s agreeable, then that executive summary will be of assistance to the judge, as opposed to having to go through the report and trying to understand it.
And again, one other factor which I always want to ensure when I’m dealing with an expert is that the expert is the one writing the report. Often being the case where the expert may have a junior and the junior is putting down on paper what the expert opines on a matter. And you want to make sure that it’s signed by the expert and the expert knows the report, it’s not just a report that was signed off without the expert knowing all aspects of the report.
Diane Vieira: Now in terms of the scope of what the expert can testify on, is that something that you discuss at the beginning and in that initial retainer letter to him?
Craig Vander Zee: Well the rules of fair play and the Rules of Civil Procedure would require that the report is supposed to encompass what the expert is going to give evidence on. So you have to make sure that the report covers the intended areas of expert opinion. And it may very well be that if a sub area comes up, that that would be dealt with, but at least with respect to the issue that you’re trying to get across to the Court in terms of an expert opinion, you want to make sure that the report covers that off clearly and in a manner that’s going to be understood by the other side. And again, with the mindset that the report might end up in front of the judge.
Diane Vieira: I think that brings us to an end of this week’s discussion. Thank you very much.
Craig Vander Zee: My pleasure.
Diane Vieira: And just on a final note, you can send us an email at email@example.com or you can leave us a message on our comment line which is 206-350-6636. Once again, thank you and have a good week.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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