The elephant in the room is the cost of litigation when counsel is talking with an expert.  Particularly the cost of investigating smaller cases.  Counsel doesn’t always talk with an expert about cost when the merit of a case is being assessed.  This sometimes causes problems later and may also compromise an expert’s independence and objectivity.

Small to medium size cases are the norm, not large, well funded cases brought by affluent litigants. (Refs 1 to 4)

The ‘Principles Governing Communications with Testifying Experts’, as developed by The Advocates’ Society, Ontario is a good document and was long overdue. (Ref. 3)  But there is a need for an additional principle governing communications about the cost of litigation.

There are good reasons for developing such a principle like there were good reasons for developing the existing Principles.  I understand the Principles were developed because counsel’s involvement in the expert’s report sometimes compromised the expert’s independence and objectivity.  I believe talking about the cost of litigation – after the action has begun – could also compromise the expert’s independence and objectivity, at least the perception.  My belief is based on civil, geotechnical and forensic engineering practice in Eastern Canada since the late 1980s. (Ref. 5)

Senior experts could help develop such a principle.  They could also offer comment on updating the Principles.  Good communication is a two-way process.

Often enough experts are retained months or years after counsel takes a case. (Ref. 1) And after counsel has estimated the cost of the expert`s work.  Then the expert`s invoices start coming in as he investigates the problem and these sometimes exceed counsel`s estimate.  Counsel stops the forensic investigation.  Sometimes so completely that not even an oral report of the expert`s findings go to counsel.  Findings that might point the way to justice being done – denying the court and the litigant information is touched on in the Principles. (Refs 3 and 4)

During this un-raveling process it’s not difficult to imagine a real or perceived compromising of the expert’s independence and objectivity.  These qualities are related to the reliability of an expert’s investigation and opinion.  Reliability is related to the thoroughness of an expert’s work, the gathering of sufficient data.  Thorough work can be expensive.  And when this thorough work is stopped before completion, sometimes this compromises the expert`s independence and objectivity.

A summary of facts supporting the need for a principle governing communications about the cost of litigation:

• The Principles, and the associated Position Paper, already note that litigation is expensive and that there are affluent and less affluent litigants.
• The smallness of some cases – the norm, really, which feel the presence of the elephant, is also mentioned in the Principles.
• Experts are not always consulted when the merits of a case are being assessed.
• Counsel is usually not qualified to estimate an expert’s costs.
• Nor to recognize when it’s difficult or impossible to estimate the cost of an expert’s investigation, analysis and reporting. (Ref. 6)
• The present situation could compromise an expert’s independence and objectivity.

These facts – and I’m sure there are others, support the need for a principle governing counsel’s communications with experts about the cost of litigation.

References

1. Forensic engineering practice in Eastern Canada (and supporting references), posted May 7, 2015 http://www.ericjorden.com/blog/2015/05/07/forensic-engineering-practice-in-eastern-canada/
2. What do forensic engineers investigate in Atlantic Canada (and supporting references), posted October 9, 2014 http://www.ericjorden.com/blog/2014/10/09/what-do-forensic-engineers-investigate-in-atlantic-canada/
3. Principles governing communicating with testifying experts; their development and acceptance, posted June 25, 2015 http://www.ericjorden.com/blog/2015/06/25/principles-governing-communicating-with-testifying-experts-their-development-and-acceptance/
4. The Advocates Society, Position paper and principles governing communications with testifying experts, published June, 2014 Ontario  http://www.advocates.ca/assets/files/pdf/news/The%20Advocates%20Society%   20%20Position%20Paper%20on%20Communications%20with%20Testifying%   20Experts.pdf
5. www.ericjorden.com and www.ericjorden.com/blog
6. A bundle of blogs: A civil litigation resource list on how to use forensic engineering expertsh http://www.ericjorden.com/blog/2013/11/20/a-bundle-of-blogs-a-civil-litigation-resource-list-on-how-to-use-forensic-engineering-experts/