“Expert Witness: Friend of the Court or Hired Gun” was the title of presentation put on for professional regulators on April 26, 2007. The title reflected the main theme of the evening. To be effective, expert witnesses must be neutral, objective and fair.

Three perspectives were reflected on the panel at this event sponsored by the Federation of Health Regulatory Colleges of Ontario:

·        Dr. Scott Woodside, a forensic psychiatrist with the Centre for Addiction and Mental Health, frequently acts as an expert witness.

·        Linda Rothstein, a litigator with Paliare Roland, prosecutes discipline matters for various regulators.

·        Jonathan Lisus from McCarthy Tétrault often defends physicians facing discipline.

Expert witnesses are one of the few witness allowed to express an opinion (most witnesses can only describe personal, factual observations). Experts can help a hearing panel understand the implications of the evidence before them (e.g., whether professional standards have been met or not). Experts can also provide information that might otherwise not be available (e.g., DNA evidence).

The panel has experience with expert evidence in the following areas:

·        Professional standards,

·        Incompetence,

·        DNA evidence,

·        Psychiatric evaluations of individuals (e.g., fitness to undergo a hearing, whether an illness contributed to the conduct),

·        Substance abuse,

·        Documentary and handwriting analysis,

·        Voiceprint identification, and

·        Audio analysis (i.e., has an audio record been tampered with).

All of the speakers emphasized the need for expert witnesses to be neutral and fair-minded. One leading case, the “The Ikarian Reefer"), (1993), 2 Lloyd's Rep 68, QBD (Com.Ct.), described this duty as follows:

·        Expert evidence should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation

·        An expert witness should provide independent assistance to the tribunal by way of objective unbiased opinion on matters within his or her expertise. An expert witness should never assume the role of an advocate.

·        An expert witness should state the facts or assumption upon which his or her opinion is based. He or she should not omit to consider material facts which could detract from his or her opinion.

·        An expert witness should make it clear when a particular question or issue falls outside his or her expertise.

·        If insufficient data is available, then this must be stated. Similarly any qualification of the opinion should be stated in the report.

·        If, after exchange of reports, an expert witness changes his or her view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay.

While The Ikarian Reefer is no longer new, it has been applied with greater fullness in recent years.

The panel offered the following guidance to regulators (and their staff) approaching an expert:

·        Review the issues first to obtain some familiarity with them. This will help you identify an appropriate expert and the most useful questions to ask the expert. It will also help you identify any limitations as to what the expert can offer.

·        Canvass your time lines with the expert in the first conversation. It is better to have the expert bow out right away than have to rush around latter to locate another expert.

·        Consider with the expert if he or she has any connection with any of the parties or participants in the matter.

·        Discuss with the expert his or her role and duties of neutrality, particularly if he or she is not experienced with the recent expectations.

·        Ensure that questions posed of the witness are worded neutrally and do not suggest a particular slant or bias.

·        Provide all appropriate information to the expert. Generally more is better than less. Withholding relevant information (and often only the expert can identify what is relevant) can be a fruitful ground for cross-examining the expert on his or her opinion. It can also be a basis for challenging the fairness of the prosecution. However, including information that may tend to have little value beyond tainting the expert (e.g., an inflammatory statement of allegations against a practitioner) can also do harm.

·        Alert the expert to the fact that all communications by the expert to others will have to be disclosed to the other side. For example, if the expert sends a draft report with a covering email containing a clever, but sarcastic comment, both the draft report and the email will have to be disclosed to the other side. They will be used to cross-examine him or her.

·        Ask the expert to list all of the sources of his or her information. This includes factual information (e.g., the contents of the file being reviewed), his or her assessment and testing, and any colleagues the expert discussed the issues with.

·        Document all communications with the expert. They will have to be disclosed to the other side.

·        Remind the expert of his or her duty of confidentiality. For example, if the expert consults with colleagues on the issues (which can be appropriate) ensure that the expert does so without identifying the matter.

Next month Grey Areas will review how expert evidence should be handled at a hearing.

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