Tag: expert testimony
In wills, trusts, and estates litigation, much hinges upon expert evidence. In a will challenge that is based upon alleged testamentary incapacity, both the objector and propounder of the will would be prudent to enlist a capacity assessor. A party suspicious of undue influence may wish to consult a physician, a police officer, or some other party who could be privy to abuse. In a contested passing of accounts, an expert investor can speak to the soundness of a trustee’s investments.
Though in theory expert evidence should clarify the points of contention, in practice it can sometimes render matters murkier and more uncertain. For instance, what happens if two equally distinguished handwriting experts draw opposite conclusions? What if a coroner’s findings contradict the preponderance of other evidence?
Another concern is experts’ impartiality, as evidenced by Wilton v. Koestlmaier, wherein one party unsuccessfully charged an expert witness with advocating for the other side. Courts have long been apprehensive that some experts may (perhaps unwittingly) be kinder with the parties with whom they interact and from whom they collect their bills. In 1873, Sir George Jessel, M.R., wrote:
“There is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them.”
One possible fix for this source of apprehension is to have both parties deal with the same expert. At the very least, litigators should not employ the same expert to too great an extent, which might appear as a “red flag”.
Courts have also looked into the timing for delivery of expert reports. The Rules of Civil Procedure prescribe that expert reports are served no less than 90 days before the pre-trial conference (or 60 days for responding parties’ reports). Oftentimes, however, parties should exchange their reports well before these deadlines, for once parties receive these reports, they have a much better idea of the relative strength of their positions, which may steer them towards settlement. In Ismail v. Ismail, Grace J. spoke to this:
“How can the parties’ lawyers advise their clients concerning settlement without knowing their case and the one they must meet? How can the parties make informed decisions?”
Too many experts can increase costs exponentially (especially if the experts are famous or from faraway places), but too few experts could lead to a scantiness of evidence. As a nice medium, the Australians have come up with the practice of “hot tubbing” experts—which, despite its fun name, does not involve splashing, shouting, or the unusual combination of horn-rimmed spectacles with bathing suits. Rather, “hot tubbing” refers to having a panel of experts questioned together, which can allow for an identification of the points of agreement and disagreement and more lively discussion.
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Suzana Popovic-Montag and Devin McMurtry
The Ontario Superior Court of Justice recently made an important ruling on a voir dire in respect of Dr. Kenneth Shulman’s proposed expert testimony.
This ruling will be of particular interest to estate litigators as it addresses the inherent admissibility of retrospective capacity assessments, amongst other things.
The Court in this instance implemented a form of blended voir dire, wherein Dr. Shulman’s evidence would be received in its entirety and submissions would be made on the issue of admissibility of the expert testimony. In the event that the Court ruled that Dr. Shulman’s evidence was admissible, the evidence obtained during the voir dire would be incorporated as part of the trial record.
The Defendant, amongst other objections, took issue with Dr. Shulman’s testimony on the basis that his testimony was based on a retrospective capacity assessment which was problematic for the following reasons:
- The proposed opinion was based on hearsay evidence and must therefore be excluded; and
- Expert opinion evidence on retrospective testamentary capacity assessments constitutes novel or contested science and is therefore not reliable.
The Court did not accept that Dr. Shulman’s use of certain evidence that has not been proven, and has not been relied upon him for the truth of its contents, prevents the Court from admitting his expert opinion evidence at the threshold admissibility stage. In other words, any such issues could be addressed in reference to the weight of the proposed evidence.
Most interestingly, however, the Court noted that many of the types of medical and psychiatric opinions offered at trial are retrospective in nature and did not agree that retrospective capacity assessments are novel in Ontario courts. The Court specifically noted that the Defendant was unable to identify a single case, since retrospective testamentary capacity assessments were first considered by the courts, in which psychiatric expert opinion of retrospective testamentary capacity assessment has been ruled inadmissible.
In applying the admissibility test established in R v Abbey 2017 ONCA 640, the Court held that Dr. Shulman’s expert opinion satisfied the threshold requirement in the first step. In weighing the cost versus benefit of admitting Dr. Shulman’s report, the Court found that the evidence favoured the admission of Dr. Shulman’s evidence.
The Court made a ruling admitting Dr. Shulman as an expert geriatric psychiatrist to provide expert opinion evidence in the areas of geriatric psychiatry and retrospective testamentary capacity assessment.
This is an important ruling in the context of estate litigation given that in most instances, the capacity assessments that are usually relied on in the course of litigation are of a retrospective nature, since the subject of the assessment is most often deceased.
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When a will is challenged on the basis of testamentary capacity, one of the first considerations is whether the testator underwent a capacity assessment during their lifetime. Unfortunately, when it turns out that their capacity was never formally assessed, this presents a challenge for both sides of the proceeding. In this situation, a retrospective capacity assessment may be done by a medical professional. A retrospective capacity assessment usually involves a review of the testator’s medical records, any relevant lawyers’ files, and any other relevant material. The retrospective capacity assessor will conduct their assessment in the context of the legal test for capacity.
In will challenge cases, the medical records are often crucial. As these records may be some of the only evidence available that speaks to the testator’s condition and state of mind, it is vital that judges are able to understand the technical points and the effect of the evidence that is found in the records. However, most judges do not have the specialized medical knowledge required to come to a fulsome understanding of the evidence and come to the proper conclusions. Particularly given the frequently voluminous amount of medical records that may be produced by hospitals and health-care institutions for a particular patient, it can be difficult to wade through and identify the key elements. As such, the use of experts who do, in fact, possess specialized medical knowledge is important in order to assist judges.
However, even the presentation of technical medical evidence by a medical professional can be complicated and time-consuming. One method of presenting expert evidence, referred to as “hot tubbing”, originated in Australia and involves a process whereby all experts in a proceeding present their evidence concurrently, as a panel. Some of the benefits linked to this type of presentation include shortening the length of expert evidence in order to make a more efficient use of the court’s time, and assisting the judge in understanding the complexity and volume of the evidence.
This type of presentation of expert evidence may be useful in the case of a will challenge, where there is disagreement between opposing parties’ experts, and voluminous medical evidence that must be presented. “Hot tubbing” allows the experts to be questioned together. As such, it can help emphasize the key issues, the areas where the experts disagree, and the areas where they agree. By identifying areas of agreement, this can help reduce the time spent on those areas, and free up more time to focus on contentious matters. “Hot tubbing” can also identify where the experts may have made different assumptions and how this has affected their conclusion, and can also allow for a more debate-like discussion, where experts can challenge the other’s evidence and provide further evidence to support their own, opposing position.
The practice of “hot tubbing” is not frequently used in Canada. It can also have its downsides if one expert tends to dominate the other in presenting their evidence, or if the experts do not respond well to the more collaborative approach. As with any presentation of evidence, it can be difficult to predict exactly how it will come out at the time of trial. It takes planning and preparation to ensure that evidence is presented as efficiently and clearly as possible.
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Wendy Reynolds from Slaw recently posted on a proposed regulatory change to the Rules of Civil Procedure with respect to the duties of expert witnesses. Coming into force in two years, the December 27, 2008 Ontario Gazette lists several amendments to the Rules of Civil Procedure including:
RULE 4.1 DUTY OF EXPERT
Duty of Expert
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.
It will be interesting to see what impact, if any, this amendment will have on the duties of expert witnesses. Case law already suggests expert witnesses are already required to report in an independent manner and cannot been seen as an advocating for the party that retains them. The strength of an expert witness comes from their objective evidence and the evidence of an expert witness will be rejected if they are bias.
Does this proposed Rule merely confirm the well established principles of expert evidence as it has developed in case law or does it go beyond establishing the independence of an expert witness? Are we moving towards the use of joint experts to assist the Court? We have a few years to find out.
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This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination.