The release of the Superior Court decision in Moore v. Getahun prompted discussion in the profession regarding the issue of appropriate communications with expert witnesses, especially in the preparation of experts’ reports and affidavits and in preparing experts to testify at hearings or trials. As the law in this area is somewhat unsettled, and varies from jurisdiction to jurisdiction, confusion and concerns have arisen among members of the bar and among expert witnesses. Requests have been made by our members for clarity and guidance. The Advocates’ Society therefore formed a Task Force from its membership to examine this issue.
The Task Force consisted of more than twenty senior advocates who practice in a wide variety of areas, including family, personal injury, intellectual property, corporate commercial, administrative and criminal law. The purpose was not just to consider whether Moore v Getahun was wrongly decided, but to canvass the jurisprudence on the broader issue of communications between counsel and testifying experts. The work of the Task Force resulted in the Position Paper on Communications with Testifying Experts (the “Position Paper”) and the Principles Governing Communications with Testifying Experts (the “Principles”). The Principles are not intended to address all aspects of the retention and preparation of expert witnesses. Numerous other works have addressed those issues. Rather, the Principles are intended to address the conduct of advocates in their dealings with experts with a view to ensuring that advocates can fulfill their important duties to their clients and to courts and tribunals without compromising the independence or objectivity of testifying experts or impairing the quality of their evidence. The Principles are offered with the expectation that adherence to the Principles will serve to safeguard appropriately the independence and objectivity of expert witnesses while supporting the proper and efficient administration of justice.
Click here to access the Principles and the Position Paper.
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