Expert Witness from the perspective of the judge, TLABC Medical Legal Conference, Mexico, 2013

The following is from the rough notes I took at the Trial Lawyers of British Columbia Medical Legal Conference in Playa Del Carmen, Mexico, 2012.  The Hon. Marion Allen, having served 24 years as a judge was obviously an expert herself on expert testimony.  Even by Mohan standards she was well qualified to be the keynote speaker at this conference. What was immediately obvious was her intimate knowledge of the English language and the way she chose her words, conveying maximum meaning with minimum waste. She was also very amusing, sharing anecdotes about her own career with honest humility.  Hon. Marion Allen is a marvellous presenter.  

Experts are expected to be experts in their area of expertise, she said. The expert must understand that he has a duty to assist the court - rule 11 6.

She clarified the "Expert's duty of neutrality", going on to say, experts will be considered more neutral if they work both for defendants and plaintiffs.

Family doctors are more often subjective and objective and the judges will sometimes make allowances for the fact they are the family doctor.  It is understood this is different from a doctor doing an IME.

The expert's has a duty of full disclosure

- there is no room in court for any dishonesty or lack of full disclosure

She went on to describe the  test for science versus junk science

-discussion of 'motion capture' technique tool admissability - judicial level of reliability - and opposing views presented and discussed . This case was chosen because it was so 'close to the line'.

To this end, she recommended strongly that lawyers reread Mohan when considering introduction of leading edge technology.

She then went on to discuss at length what she called were  "really, really" bad reports quoting a fellow judge who'd described  one such engineering 'expert'  report as  'so foggy to confuse gobblygoop"

One medical report, she described  contained no statement of qualification. In another report the medical expert said a woman couldn't return to work because of an injury  she suffered  at work but knew nothing about the MVA that was subject of the trial, 

She said that the lawyer had  screwed up that badly, letting that get to the court.

Another Medical expert  had simply catalogued the complaints but offered no opinion

Her recommendations to the expert were as follows:

- don't be arrogant 

- cross examination is adversarial - remain objective and don't be offended - expect to be vigorously cross examined.  

- doctors insist on professional independence - resist pressure to make statements with which you are uncomfortable - lawyers are advocates for their clients - an expert must stand firm giving a neutral position on the facts

- make sure you know where the trial will be held

- I realize that doctors are busy but it's recommended that a doctor pop into a public trial and hear a portion of a personal injury trial if they have been retained and are going to be an expert witness for the first time

- speak slowly so the judge can write. It is up to counsel also to keep an eye on judge to ensure the expert isn't speaking too quickly.

-speak up, the acoustics of courts in BC are not that could be desired.

-for lawyers - call the plaintiff first unless there is a good reason not to- the plaintiff's version serves as  the skeleton for the judge in hearing the rest of the trial.

- get expert reports before the courts

- ensure judge or jury understands the expert's reports