Law Times

July 26, 2010

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STORE & SHRED Exceptional Quality at Reasonable Prices! COPY, SCAN, Call us today to fi nd out how much you can Save. TF: 1.888.781.9083 $3.55 • Vol. 21, No. 24 ocdavit_LT_June7_10.indd 1 6/4/10 9:22:44 AM Covering Ontario's Legal Scene ntitled-3 1 New rules on experts create headaches Form 53, report timetables adding cost for litigants, lawyers say BY MICHAEL McKIERNAN Law Times caused N ew rules governing the use of ex- pert witnesses in the civil justice system have increased costs and confusion, according to lawyers who retain them. A series of reforms designed to make ex- perts more accountable while reducing costs and delay associated with their evidence came into force on Jan. 1. One of the most notable changes saw expert witnesses forced to sign an acknowledgment, Form 53, confi rming their duty to the court above and beyond the party that retained them. But it's the new timetable for produc- tion of reports that has caused lawyers the biggest headaches, according to Darcy Merkur, a partner at Th omson Rogers. Un- der the old rules, expert witness reports were exchanged 90 days before trial. Now parties must distribute them 90 days before the pretrial conference. Merkur says he now has to prepare expert reports for smaller, less contentious issues that used to get put off until closer to the trial date and may never have been necessary if the case eventually settles. "You didn't want to spend $5,000 to get these nitpicky things fi nalized when the trial wasn't for another year," he says. "It's forcing us to spend more money before the pretrials." Merkur notes he's also had problems explain- ing the duties imposed by the new rules to ex- perts. "Our instruction letters to the experts are so long now that they are incomprehensible." Some of the changes have made it less enticing for the average professional to provide expert opinions, says Andrew Murray. Th e rules demand detailed descriptions of the experts' qualifi cations, research history, and factual assumptions on which they base their fi ndings, all of which means they're spending more time on reports. "Th at may be a good thing because it's usually more comprehensive, better written, and more thorough," Merkur says. "But at the same time, it's more expensive." In personal injury cases, a recent court ruling on non-compliant expert reports left lawyers fearing some of their most important witnesses may not be allowed to testify be- cause they weren't retained by either side in an action, according to Stephen Abraham, a personal injury and insurance litigator from Burlington, Ont. In an April decision in Beasley v. Barrand by Superior Court Justice Patrick Moore, the judge refused to allow an expert to give his opinion based on a report produced for an accident benefi ts insurer who wasn't party to the action. As a result, Abraham says useful witnesses, such as a police offi cer who recon- structed an accident scene, may not be able to take the stand because they were never re- tained, as required by Form 53, by either par- ty. "You get this quirky situation where some of the most unbiased experts run the risk of not being able to testify because they haven't fi lled in a piece of paper. Now we're in a real state of fl ux because you've got to go to court and pray the judge will let that evidence in. Th at's a very unsettling feeling for lawyers." Dr. Harold Becker, founder of medical eval- uation fi rm Omega Medical Associates, says he has found lawyers slow to approach him with instructions as they come to terms with the new rules. Nevertheless, he sees the reforms as a small step in the right direction. "It's a terrifi c idea, but I don't think it's gone far enough," he says. "But at least it's not static. Th ere is an ac- knowledgment there is something broken." Becker would like to see a move towards Lawyer suspended for ripping off LAO BY MICHAEL McKIERNAN Law Times $30,000 in over-billed services has had his licence suspended ahead of a hearing to determine whether or not the Law Society of Upper Canada will disbar him. A disciplinary panel imposed the interlocuto- ry suspension on Massi- miliano Pecoraro despite a plea from his counsel to allow him to wrap up cases involving his last remaining criminal clients. At the same time, he has already paid back $100,000 to LAO to cover both the amounts identi- fi ed last week and for additional cases it investigated but that the A Toronto lawyer who ad- mitted last week to bilking Legal Aid Ontario out of LSUC wasn't able to include in the misconduct proceedings. Panel chairman Gerald Swaye granted an adjournment until later this fall to hear arguments on the penalty but agreed with counsel for the law society that there was an "overwhelming" concern about the public perception of any deci- sion to allow a lawyer to continue the tariff he was entitled to and billed for applications, motions, and even trial dates that never occurred to boost his number of allowable hours. Pecoraro's counsel Mark Lapo- wich, noting the lawyer had never been the subject of complaints from clients, wanted him to be able to practise until the upcom- practice," Lapowich said. But law society counsel Leslie The lawyer was not, at the time, keeping detailed records regarding the work done on fi les and had no systematic docketing procedure. TitlePlus_LT_Feb9/16_09 2/4/09 2:02 PM Page 1 practising after admitting to mis- appropriating public funds. Pecoraro admitted to profes- sional misconduct for knowingly over-billing LAO in 22 accounts related to 14 clients he represent- ed between 2002 and 2005. He altered charge details to increase ing penalty hearing. Pecoraro still has a number of criminal defence clients, including one with a trial scheduled for mid-September. "Th ere are matters that get scheduled months in advance while Mr. Pecoraro has attempt- ed to start to wind down his Together we have all the tools To ensure your clients get the most comprehensive coverage in one title insurance policy, take a look at the TitlePLUS Program , your Bar-related real estate partner! ® ® PROTECTION AS GOOD AS IT GETS 1-800-410-1013 ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS and LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. 1 Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Contact LAWPRO for brokers in Saskatchewan, Manitoba, Alberta and Québec. TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. 1 Maunder disagreed, pointing to the cases of Harry Kopyto and An- gelina Marie Codina, which also involved legal aid and in which both lawyers were disbarred. Th e seriousness of the off ence neces- sitated immediate suspension, she said. "In a best-case scenario, he's looking at a very lengthy suspension. Th ere's no reason why that shouldn't start today. What will it do to the public percep- tion of our ability to regulate law- yers if they know a fi nding can be made of over-billing an entity like LAO and yet the lawyer can con- tinue to practise after the fi nding has been made?" But Lapowich said he hoped to See Pecoraro, page 5 Storied Collection 7 Busted Bracelets 8 Focus On Forensics/ Private Investigators Quote of the week "Compliance is wishful thinking without en- forcement procedures. I think the police would say that they don't need more teeth in the legis- lation; they need more teeth in enforcement." — Ken Froese, Froese Forensic Partners Ltd., See Designing, page 9 See Practising, page 5 Billions of dollars invested, not a penny lost. July 26, 2010 5/4/10 2:49:21 PM Inside This Issue 4 Click here to subscribe today to LAW TIMES

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