Expert Witnesses and Expert Reports (The Cross Examination) – Hull on Estates #106
This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination.
Expert Witnesses and Expert Reports (The Cross Examination) – Hull on Estates Podcast #106
Posted on April 15th, 2008 by Hull & Hull LLP
Diane Vieira: Hello and welcome to Hull on Estates. You’re listening to Episode #106 on Tuesday, April 15th, 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.
Craig Vander Zee: And I’m Craig Vander Zee. Good morning Diane.
Diane Vieira: Good morning Craig, how are you?
Craig Vander Zee: Very good, we’ve got a nice sunny day. We’re kind of out of the wintry weather I hope. The snow’s gone so that’s a good thing.
Diane Vieira: Yes, I hope –
Craig Vander Zee: Having enjoyed it for the winter. I think it’s a good thing that it’s gone now so that we can enjoy the summer.
Diane Vieira: Yes. So today we’re going to talk about, we’re going to continue on something we’ve previously talked about which is expert witnesses and expert reports.
Craig Vander Zee: Well in our past podcast that I’ve dealt with this subject and then the last one was with you Diane as you will recall, we talked about the requirements of the Rules of Civil Procedure with expert reports and the timing of expert reports. We’ve dealt with having experts in the context of dealing with the rules regarding Examinations for Discovery amongst other things. And we’ve also talked about what you might consider in selecting an expert and then the report itself. What might you consider when you’re having an expert prepare the report and upon having received the report, what are some considerations that you would have and then also of the opposing side expert report. So I think the focus of today will be on what we might consider in dealing with a cross- examination, that is, in terms of preparing your cross-examination of an expert witness in an estate context.
Diane Vieira: I gather it’s important when you prepare for a cross-examination of an expert witness, you’re looking at a few things. One thing I expect you would look at is the qualifications of the expert witness.
Craig Vander Zee: Well that’s right, I mean certainly when you’re selecting your own witness it’s of primary importance to ensure that if there’s any professional certification or qualification that’s needed by an expert to give the opinion that they’re going to give, that your expert has it. Likewise, when you consider the opposing side’s expert, you look at that criteria as well and does the expert meet it? Often times, the expert will meet it. So it doesn’t necessarily become an issue, but if it is an issue, you certainly want to canvass it and deal with it in your examination.
Certainly if you have objections to the testimony on the basis that your expert or the opposing expert that is, is not qualified, you would deal with that up front with the opposing experts. You may even, in fact, deal with it prior to the expert being examined in direct. But if the judge allows the examination and then you’re dealing with it on cross-examination, then you would want to cross-examine on the qualifications. It may be that you’re not prepared to accept or admit that the individual is an expert in the area. More times than not, the expert is an expert in the area. It may just be that experts are disagreeing, but the fact of the matter may be that he is or she is a recognized expert in the area and that the qualifications themselves aren’t really at issue. But the other thing that you want to focus on with respect to qualifications is, are there qualifications specific, their credentials and their expertise, specific to what they’re actually opining on. They may be an expert in a certain area but what they are opining on during the examination may not actually match up with their actual expertise. It could be that there’s hypotheticals put by the – or questions that are asked in direct by opposing counsel to their own expert and you may want to address that if you don’t feel that the expert has the credentials to deal with that kind of issue.
Diane Vieira: Let’s look at the report itself. This is the basis of your cross-examination. Now one of the requirements is that the report has to be signed. Is this done to verify if the work in the report is actually the work of the witness that you’re cross-examining?
Craig Vander Zee: Well it’s a very important point, certainly when it comes to experts that are doing mathematical calculations or opining on the market value of things. You want to ensure at the outset of the cross-examination that indeed the expert who’s giving the evidence was the one who did the work. And maybe it’s the case that juniors or associates of the expert really did all the work and they haven’t done the homework, that is, crunch the numbers that needed to be crunched and you may want to bring that out if it appears that the expert – well, you may want to bring it out period. But certainly if the expert hasn’t signed the report or the name on the expert report is different than the actual expert giving the evidence, you certainly want to highlight that. That will perhaps give you an opening if it’s not the expert who did the actual work, to test the underlying assumptions and the number crunching that went on with that expert, because he or she may not be familiar with the details of the report, but rather the overall opinion of the report. So that should not be overlooked in first of all reviewing the expert report that you get from the other side and developing your strategy for your cross-examination.
Diane Vieira: Just to backtrack a bit, I had mentioned the report as being the basis of the cross-examination, but do you always want to use the report for cross-examining a witness?
Craig Vander Zee: Well again, there’s differing views on whether the report should be filed with the Court. Counsel may agree that expert reports may be filed with the Court to be of assistance with the judge. But it is the expert giving the evidence itself and not simply purporting to read the report. But if it can be of assistance to the Court, especially if the report contains errors and it is being filed with the Court, you may want to highlight those errors. It could be that they’re just mathematical calculations that are completely inadvertent, innocent but still significant. And it could be that if you follow the logic of if this is an expert who is providing mathematical calculations in terms of opinion evidence, it could be that if there is an error up front, that even if you follow the logic of the expert, that could very well reduce the end number of that mathematical calculation. So you may want the expert report in front of the expert, knowing that there is an inaccuracy in it and then the expert would be left, presumably as long as it’s clear that it’s a mistake, having to concede that.
Diane Vieira: Let’s move on to discussing the foundation of the report or the testimony of the expert witness. What things are you looking for?
Craig Vander Zee: Well certainly at the report, the final opinion is clearly and obviously significant. But what is also perhaps equally as important is the underlying assumptions and the facts that were relied upon to get to that opinion. It could very well be that if the facts are not proven in Court that were relied on by the expert or the assumptions are incorrect assumptions based on evidence before the Court, that the expert might actually agree or concede even if in part, that his opinion isn’t valid if the assumptions and the underlying foundation is clearly differently. So it may very well be that the opinion is dependent – it’s obviously going to be dependent on the assumptions and the underlying foundation, but if you can prove through other witnesses that those aren’t the cases set out in the report or as relied upon, you may be able to get the expert to make a concession that the opinion is strictly tied to those assumptions and to those facts.
Diane Vieira: How can you provide evidence that the expert is offering contradictory evidence?
Craig Vander Zee: Well one, there’s the report itself. Maybe the expert is providing evidence which is not consistent with the report. Maybe it’s the case that there was a mistake in the report and you would certainly want to consider highlighting that. It doesn’t mean that you will address that, it could just be that you’re emphasizing a point you don’t want emphasized. But it could very well be that you use the report itself to show that this is contradictory evidence. You can also go to articles which may have been written by this expert, where similar assumptions and underlying foundation and facts to your scenario has been written about by the expert and maybe the expert in an article has agreed with you. And it could very well be that on the specific circumstances of the case, the expert is not agreeing with your expert or with your case, but that in other circumstances, he or she would. And then you’re left to proving those other circumstances. So certainly you can look at other articles. It may be that the expert testified under, in previous litigation, to a different opinion on the same facts. And that may be something that you will want to address. Again, you can attack the underlying assumptions and hypotheticals that are out there, either in the report or that come across on the examination in chief, as a way to undermining the credibility of the opinion because the foundation is incorrect.
Diane Vieira: When you’re preparing for a cross-examination, how can your own expert witness help you?
Craig Vander Zee: Certainly I would want to have my expert witness involved. First and foremost, once you get the report from the opposing expert, you’ll want to do some sort of response, or at least consider the response. And so you may wish to retain an expert even if the expert’s not going to provide a report or give evidence, to at least look at and evaluate the report for you. And then you can base your decision as to whether you want to file the responding report on that, and then at the cross-examination itself, if it’s very technical in terms of mathematical calculations or determining frankly opinions that depend on numbers, that you’ll want your expert there to hear the evidence because if the evidence in direct isn’t correct, you have the opportunity to speak to the expert and you can address those issues on your cross-examination. And so it can be a very strategic advantage for you to have an expert there, the one that is giving the contrary opinion to the expert in the box, in certain circumstances.
Diane Vieira: Is anything else to think of when you’re preparing for a cross-examination?
Craig Vander Zee: Well, there’s many different things and we’ve only discussed some of them today obviously. There’s one thing that you can keep in the background of your mind, at least I do, is it may be a very well respected expert and the report may be done quite well. It could just be that you have two experts that are recognized in the area that are coming to a different conclusion or a different opinion. In that particular case, you have to evaluate whether you’re going to be able to get really a concession from the expert. That is to say, will the expert just simply capitulate and agree with your opinion. The likelihood of that is extremely small. If it’s a well experienced and well recognized expert who’s given expert evidence before. So what you can do is what I call ‘going for the grey’, is to try and slowly move the expert off of their position, maybe not all the way to agreeing with your case, but as far along that path as you can so that you can in some way differentiate the expert reports when you’re dealing with the trier of fact, that is, the judge and you want to highlight the differences in the report. You may be able to say, well he didn’t agree or she didn’t agree with our experts report, and as they conceded their position would change if this, this and this were different. You may be able to highlight those kinds of differences and I call that ‘shooting for the grey’ because you’re not hitting a home run in terms of the response, but you’re trying to work your way towards getting and improving your position.
Diane Vieira: I think that ends our podcast for today. Thank you for listening. It was a pleasure, Craig.
Craig Vander Zee: Always a pleasure, Diane.
Diane Vieira: And we look forward to hearing from our listeners. You can send us an e-mail at firstname.lastname@example.org or give us a call at 206-350-6636. Be sure to visit our blog at estate.hullandhull.com where you’ll find even more information. Thank you for listening and have a great day!
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