Particularly if most disputes don’t go to trial or a tribunal?  But, isn’t that the purpose of the rules, to keep disputes out of court?  Like Rule 55 in Nova Scotia?  That’s true, and they do this by setting a high standard for an expert report.  The parties, on reviewing the report, would often enough see their way clear to settle.

However, I wonder if a lower standard of report is now being accepted?  Why pay for a higher standard if the dispute is unlikely to go to trial or a tribunal?

The standard appears to be lower in the Maritimes if a survey I did of seven engineering experts in NS and NB is any indication.  I asked them, “To what extent do you see bias and poor analysis and reasoning in rebuttal expert reports?”.  The consensus was almost always. (Ref. 1)  I’m certain, the question could be asked about expert reports, in general, and the reply would be similar.

(I wonder if the bias and poor reasoning we see in some expert reports in the Maritimes appears in some of the reports of the experts surveyed in Ruth Corbin’s pilot study of 152 experts in Canada?  The study noted the expert’s view of their role in the judicial process. (Ref. 2))

The civil procedure rules are a short, simple guide on carrying out a forensic investigation and writing an expert report, but what good are they if they’re not followed?

And why aren’t they?  Cost?  Possibly.  An understandably, poorly informed non-technical client?  Likely.

I don’t think the rules are going to be taken down any time soon.  I think what’s expected of the expert must go up.  This must come to some extent from a better informed client about the benefits – including cost-benefit in the long run for both client and injured party – of a thorough investigation and a well written, objective expert report.

What’s being submitted now for expert reports and rebuttal expert reports are easily reviewed by unbiased, experienced technical experts – easily “slammed!” to use an expression by one of my survey experts.

(I’ve got a problem with that word “slammed” as reflecting an attitude at odds with a simple desire to seek the truth when peer reviewing another’s expert’s report.  But, it does indicate what can happen to a poorly written report)

What are the benefits to the expert and the client of following the rules for likely out-of-court settlements?  I think the following quote is a good answer:

“An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier (if it goes that far, and pre-trial decision making more reliable) and will enhance the reputation of the expert.

On the other hand, a poorly written report will damage the expert’s reputation, can turn deposition into a nightmare, and can become a career-ending event (and an out-of-court settlement or dispute resolution into something less than fair for some of the parties)” (Ref. 3) (The parenthetic comments are mine)

***

A little aside.  What’s in Ref. 3 – How to Write an Expert Witness Report – for counsel and insurance claim’s managers if you were to buy it – which I think you should?  Maybe even give a copy to your expert?

This 2nd edition, massive, 560 page, 8″ x 11″ book is a step-by-step guide for experts written by lawyers.  It’s based on a review of 1,000s of expert reports, case histories and insurance settlements.  It will give you great insight into what you should be getting for your expert-report dollar.  It’s far more comprehensive than civil procedure rules governing experts, as good as they are.

(This is not a commercial for the book.  I use it and it’s excellent!)

References

1. Is there an argument for a peer review of a peer review?  Posted January 11, 2020
2. How experts are helping break the expert evidence logjam. Posted April 30, 2018
3. Mangraviti, Jr., James J., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, 2014, (the Preface), 560 pg, 2nd edition, SEAK, Inc., Falmouth MA

I wondered after a recent blog if there is an argument for a peer review of a rebuttal expert’s report. (Ref. 1) There’s a strong argument, if the evidence is any indication – evidence characterized, at the very least, by biased phraseology in the rebut.

In my blog I identified when peer review of an expert’s report could be done – as distinct from a rebuttal expert’s report – during the judicial and dispute resolution processes, and the involvement of the expert at each stage of a process.

I listed the stages in decreasing order of preference according to the involvement of the expert in organizing a peer review of his report.  The less involved the expert the more preferred the stage.  A peer review organized by the court or dispute resolution tribunal is the most ideal.

I included a rebuttal expert’s report in the list because it can be thought of as a review by a peer of an expert’s report.  I put it at the end of the list as least preferred even though the expert doesn’t organize it.  I did this because of the bias I see in rebuttal reports.

Based on what I’ve seen, and learned from other experts, rebuttal expert’s reports need to be peer reviewed.  A well reasoned and written rebuttal expert’s report can serve as a peer review of an expert’s report but that’s not happening.  They are not being prepared as required according to civil procedure rules governing experts, like Rule 55 in Nova Scotia.

My opinion is based on a survey of seven people in Nova Scotia and New Brunswick who provide expert services.  I asked them, “To what extent do you see bias and a lack of analysis and reasoning in rebuttal expert reports?”.

The consensus was almost always.  Sometimes it’s due to sneaky bias that creeps up, unbeknownst, on all truth-seekers.  Other times – too often – it’s due to poor analysing and reasoning followed by poor report writing.  At times it’s blatant case-making for the client.

Also, often enough, the client, not being a technical expert in the issue, is unaware of his expert’s rebuttal report’s vulnerability to peer review.

***

So, based on a survey of well experienced experts in the Maritimes, rebuttal expert reports are likely biased and poorly prepared and there is a strong argument for peer reviewing them.  And the guidance in civil procedure rules like Rule 55 in Nova Scotia make it easy to do and cost effective.  It costs money in longer trials, longer dispute resolution processes and questionable insurance settlements if a rebuttal expert’s report is found wanting – as most are now.

References

1. Ridding peer review of potential bias.  Posted December 30, 2019