More often than not, referral of a legal problem to lawmakers, or to rules committees for broad consultation, is manifestly preferable to making up procedural law on the fly. In the Ontario Superior Court decision released this week in Moore v. Getahun, 2014 ONSC 237 (CanLII), the trial judge issued an injunction against the practice of litigation counsel reviewing draft reports with expert witnesses.
The relevant paragraphs from the ruling appear at paragraphs 50-52:
 For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.
 If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.
 I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.
The statement, repeated at paragraph 520 of the judgment thus, “I conclude that counsel’s practice of reviewing draft reports should stop,” reminded me of the admonition of Justice Breyer of the U.S. Supreme Court, advising restraint of judicial activism and referring to Owen Glendower’s statement in Shakespeare’s Henry IV:
“I can call spirits from the vasty deep.”
To which Hotspur replied, “Why, so can I, or so can any man, but will they come when you do call for them?”
Breyer was reminding the judiciary of its truth-finding function and of the need to avoid ad hoc lawmaking. By extension, the reference to the exchange between Glendower and Hotspur applies equally to pronouncement of unworkable solutions to problems such as lawyer manipulation of court experts. Telling all lawyers to stop reviewing draft or informal opinions with their expert witnesses will set back the cause of justice, not advance it. It will place lawyers in conflict between the injunction and their duties to the administration of justice.
The injunction against review of draft reports reflects an incorrect premise that scientific experts are like Delphic oracles and that orthodoxy in the investigative process leads to honesty in expert testimony. As Copernicus and Galileo showed through empirical study and self-doubting, orthodoxy and science are not comfortable co-travellers. The oracular view of the expert reflects an outdated understanding of scientific method. Scientific method is a specialized use of language and logic. Opinions are based on hypotheses, data, assumptions and professional dialogue among peers. Expertise is worthless unless it can be expressed in words and symbols in a manner which allows others to verify by experimentation. As such, any opinion can be flawed by inadvertence in factual assumptions or in methodology. Everyone, including the brightest and best, can make mistakes that have nothing to do with honesty or credibility.
The only honest way to present a technical issue requiring expert help is to ensure the expert has had the benefit of all the facts. Some facts can only be discovered after an expert has provided an informal opinion. If the expert has come to a conclusion and has omitted consideration of a significant fact, should the lawyer just file the flawed (and therefore intellectually dishonest) report; or should the lawyer ask the expert whether the omitted fact changes her mind?
If the expert changes her mind, should the lawyer deprive the court of the expertise and start from scratch with another expert, on the basis that counsel’s input breached the integrity of the opinion?
What if the lawyer receives a report that is more favourable to the client’s case than it should be, due to an error or the failure to consider a fact whose relevance was previously ignored? Should the lawyer not have the opportunity to review with the expert to ensure the conclusion is not deceptive? Is there not an overriding duty of counsel to ensure the expert opinion is fair and complete?
As the National Judicial Institute develops its Science Manual for Canadian Judges, it is important for the bar and bench to develop means to enhance the transparency of the use of experts in litigation. This text rightly accepts that “science is, by definition, provisional” in that it involves constant testing and retesting of hypotheses based on emerging facts, perspectives and methods (Chapter 1, p. 41).
As a matter of best practices, trial counsel will often play Devil’s Advocate with an expert throughout the retainer, not to skew an opinion but to ensure that the opinion is clearly expressed and can withstand scrutiny under vigorous cross-examination. A misinformed scientific opinion, arising from counsel’s kid-glove deference to a scholar’s impressive CV, will almost surely result in the spectacle of a highly-regarded expert witness having her opinion cut down by the opposing lawyer. Moreover, in recent decades, the quality of professional expertise has increased in inverse proportion to command of the vernacular. If professional writers need editors, why not molecular biologists? Should a party’s freedom or a victim’s right to compensation depend on a dangling participle?
Even worse, requiring experts to work in isolation from counsel can lead to a misunderstanding of the expert’s duty to be impartial: the very abuse exposed by the Gouge Inquiry into Pediatric Forensic Pathology in Ontario. (Dr. Charles Smith, a leading pediatric forensic pathologist, had testified for years believing his role was to secure convictions for the Crown. He was permitted to do this in part because of lack of review of his work prior to testimony, out of deference to his expertise.) Instead of allowing the lawyers to present the best evidence, the prohibition stated in Moore v. Getahun will lead to greater court reliance on flawed and sometimes worthless expert evidence.
Interestingly, Chapter 4 of the Science Manual, at page 194, contemplates acceptance of expert evidence even when counsel drafted the report itself to overcome language or other issues: “In such circumstances, what is critical is not that counsel drafted the report but the full context of the preparation of the report, including the facts provided by counsel to the expert that served as the basis for the expert’s findings and conclusions, and the process by which the expert came to review and adopt the report.”
In contrast to this effort by the judiciary to promulgate understanding of the role of experts’ skill and knowledge, ad hoc injunctions against useful and legitimate forms of investigation and case preparation are not helpful to the truth-seeking function of the Canadian judicial process.