Sharp Practice

[MOL]

Agreed re the workplace having signs etc. You would at least have to explore it somewhat. 

In regards to the other expert refusing to mask up, then the Examination gets done by video. If there was no prior notice, then I would argue for throw away costs of the aborted one. I generally canvass willingness to do exams or mediations etc. with my clients/witnesses prior. For example, I have one client who is adamant that he will not be in the same room as anyone else (he has a severely immunocompromised child) and let everyone else know that it will all have to be done virtually.

[Jaggers]

1 hour ago, MOL said:

If an expert I retained, didn't bring said looney tunes to my notice, if they are aware of them, then I'd be furious. I think they should let me know. Though in fairness, they do have a duty to the court not to become a shill for me as well.

The problem with this is that no one thinks that their own views are looney tunes, so how would they know what to bring to your attention?

[123]

6 minutes ago, Jaggers said:

no one thinks that their own views are looney tunes

The story of our times.

[MOL]

19 minutes ago, Jaggers said:

The problem with this is that no one thinks that their own views are looney tunes, so how would they know what to bring to your attention?

Sorry, I meant if my expert was aware of the looney tune views of the opposing expert, not that my expert should alert me to their own.

[Jaggers]

Got it. I haven't worked with that many experts. I did once have an expert in urine sample analysis who testified that whatever was in the employee's sample tube, there was no way it was human urine.

[Hegdis]

This expert stuff is fascinating. On the Criminal side, there's none of this "review a draft" or "don't photocopy" stuff going on. We deal with two types of experts, typically: drug experts (were these drugs possessed for the purpose of trafficking) and medical experts (does this injury satisfy the charge). 

Crown gets their expert CV and Report to defence in advance and everything is well understood ahead of time. Doesn't impair a defence, really: you can still challenge the expertise in voir dire, you can still go for bias, you can still cross on alternate hypotheticals that raise a reasonable doubt.

It's interesting to see how different it is on the civil side.

[CleanHands]

I already knew the threshold standard for admissibility of expert evidence was set far too low (granted it can be admissible but still given no weight because it's garbage, of course). But Dr. Spiegel in the Depp/Heard trial really reinforced that. lol

[epeeist]

To oversimplify a bit and rules in a particular jurisdiction may vary etc. NOT opining on law in any particular jurisdiction and oversimplifying also.

Providing expert reports in civil litigation is an exception to litigation privilege. Meaning, anyone consulted who won't be testifying, all that is privileged. So in some matters, a lawyer might theoretically consult several experts until finding one who honestly and genuinely is inclined to interpret the evidence in a way that favours that party's side. Get verbal updates as expert investigates more, if at any point they express a different opinion based on more evidence and testing, maybe you settle at that point, if not keep pushing and if have to go to trial the trier of fact (judge or jury) is faced with what seems like a balance of two "equal" opinions that differ, even if in the real world it might be 99% of experts would agree with one side and the other side's expert is a real outlier.

[Vizslaw]

41 minutes ago, Hegdis said:

This expert stuff is fascinating. On the Criminal side, there's none of this "review a draft" or "don't photocopy" stuff going on. We deal with two types of experts, typically: drug experts (were these drugs possessed for the purpose of trafficking) and medical experts (does this injury satisfy the charge). 

Crown gets their expert CV and Report to defence in advance and everything is well understood ahead of time. Doesn't impair a defence, really: you can still challenge the expertise in voir dire, you can still go for bias, you can still cross on alternate hypotheticals that raise a reasonable doubt.

It's interesting to see how different it is on the civil side.

My experience has been the same. The closest we've got to a draft review was a voir dire for the admissibility of an expert report re: money laundering. During the voir dire there were some issues with the scope of the opinion offered so some references (i.e., to financing terrorism and using gold/precious metals to launder funds) were removed from the Report and the expert was allowed to prepare an updated draft after the voir dire that could be made an exhibit for the jury.

[Rashabon]

4 hours ago, epeeist said:

I'm thinking of expert reports and testimony having nothing whatsoever to do with Covid or medicine, so not within the witness's area of claimed expertise. But that it would be fair to challenge someone who expressed the belief that the Earth is flat, for instance - to what extent can ridiculous beliefs that are outside the expert's bailiwick fairly be used to challenge their ability to be a dispassionate expert following scientific principles?

This would preclude the use of experts that are also religious. No complaints on my end, but I'm not sure that COVID has changed the game substantively. Scientific experts and engineers are notorious for being all too willing to pretend at expertise in areas outside of their niche, while not necessarily impugning their own expertise. Ben Carson comes to mind, as he is genuinely an idiot while also formerly being a skilled neurosurgeon.

[MOL]

The more I practice, the more I applaud the efforts of the Courts to reduce the use of experts. In quite a few cases it has become tactical not for the content of the expert report but rather as a scaremongering cost consequence; "knuckle under or we'll bury you in reports that you will have to pay the disbursements for at the end of the action". Some jurisdictions have started to limit the number of experts that a party can call. I've had defence injury files where the plaintiff has a report from the chiropractor, the family doctor, an orthopod, a physiatrist, a rheumatologist in addition to loss of income, cost of future care, employability etc etc etc.

I think a system where the two parties pick an expert and those experts jointly pick a third. Everyone is bound by the third expert's opinion. Something along those lines anyway.....

[Rusty Iron Ring]

4 hours ago, MOL said:

I think it's fair game to question an expert on their opinion on other topics if you can tie it back to the issue at hand. So, if someone is expounding on a scientific matter and has looney tune views on a different scientific matter, I'd go after them on it. I think you have to and you are being negligent if you don't. It's up to the other side to put a cogent objective before the Judge and then the Judge can decide.

Yeah.  So, if for example your witness who has looney tunes views on the masks or vaccines is being tendered as a medical expert, I think it would be completely onside to start poking around about whether or not they tend to expound views that diverge drastically from the scientific consensus. 

I would think that the greater the gulf between their looney views and the subject matter, the harder it would be to justify the line of questioning. 

So, expert who is a flat earther probably doesn't get you anywhere if he is giving evidence on handwriting, but definitely needs to be explored if he is a geotechnical engineer. 

Also, the question about experts disclosing looney views reminded me of the time my forensic engineer called me to discretely tell me that the opposing side's expert had been in his engineering class, and had flunked out.  That was a fun day. 

[MOL]

I've had the opposite too; put my guy up and did alright. Opposing side's expert goes up and blows him out of the water.

[epeeist]

@MOL One (not the only!) difficulty with two pick a third is, as you know from dealing with experts, expertise not= ability to communicate well (the third expert). I prefer hot-tubbing, getting the experts to agree on what they can and highlight the areas in which they disagree, I've even seen a joint expert report between experts where as simple as using different colours to indicate points where each expert had different opinions, everything else the court knows is agreed-upon.

@Rusty Iron Ring Agreed re area of opinion, I was thinking of, communicable diseases may not be area of expertise, but it's someone who regularly wears masks as protective equipment in other circumstances, as well as following the scientific method. It was the masks in other circumstances for safety that for me made it a more problematic/challengeable viewpoint.

[MOL]

Hot tubbing would work as well and yeah might be more efficient.

[123]

28 minutes ago, MOL said:

Hot tubbing would work as well and yeah might be more efficient.

1 hour ago, epeeist said:

hot-tubbing, getting the experts to agree on what they can and highlight the areas in which they disagree

I was disappointed to learn that this wasn't a discussion on sticking your experts in a hot-tub, getting hot-tub experts, or something else related to hot tubs and litigators.

[Rusty Iron Ring]

I wonder if opposing litigators would calm down a little bit if they were forced to sit in a hot tub once in a while. 

I, for one, am willing to try. 

[MOL]

Put everyone in the tub; parties, counsel and the judge. Then crank the water temperature. 

[Rusty Iron Ring]

14 hours ago, MOL said:

Put everyone in the tub; parties, counsel and the judge. Then crank the water temperature. 

I believe they call this "pre-trial"

[razraini]

30 minutes ago, Rusty Iron Ring said:

I believe they call this "pre-trial"

My pre-trials are a bit more like three people squeezed into a lukewarm bath

[epeeist]

18 hours ago, realpseudonym said:

I was disappointed to learn that this wasn't a discussion on sticking your experts in a hot-tub, getting hot-tub experts, or something else related to hot tubs and litigators.

Out of habit I've sometimes used the expression with US experts who aren't as familiar with it..so I went with it and suggested checking out if the hotel one was staying at had a whirlpool we could book for a meeting.

[Rusty Iron Ring]

40 minutes ago, epeeist said:

Out of habit I've sometimes used the expression with US experts who aren't as familiar with it..so I went with it and suggested checking out if the hotel one was staying at had a whirlpool we could book for a meeting.

It's a pretty strange expression. I would love to know the origin. Whoever coined it had a very different experience of what goes on in hot tubs than I have had. 

[Jaggers]

Apparently it originated in Australia. They may use hot tubs differently there, it's a very weird place. 

https://www.canadianlawyermag.com/practice-areas/litigation/hot-tubbing-experts-should-lawyers-like-it/268255

[Rusty Iron Ring]

1 hour ago, Jaggers said:

Apparently it originated in Australia. They may use hot tubs differently there, it's a very weird place. 

https://www.canadianlawyermag.com/practice-areas/litigation/hot-tubbing-experts-should-lawyers-like-it/268255

Thank you.  Now I am picturing a bunch of aussie engineers sitting in a hot tub, drinking and arguing about stress fractures.  It all feels profoundly right. 

[epeeist]

Just thinking of opportunities for sharp practice with Rogers outage, e.g. sending a fax to a law firm to the attention of the lawyer you're dealing with there, at 4:55 PM (or shortly before whatever the equivalent deadline time is...) anticipating that if they use Rogers and if their system sends both incoming faxes and voicemails to lawyers as emails, you may get delivery confirmation on the fax and leave a voicemail while they don't actually receive it or notice of it.

I say fax they don't get instead of an email, because email you either get a non-delivery receipt or if not everyone knows there's an outage, whereas a fax gives plausible deniability ("I sent a fax on Friday your Honour because of the internet outage, and followed-up with a voicemail reminder the same day, I was trying to be cooperative and facilitate the hearing of this urgent Monday morning motion! They should be here!").

I shouldn't need to say, but some people are irony impaired, I am obviously NOT suggesting actually doing anything horribly unprofessional or worse like this!