Law Times

Page 14 April 10, 2017 • lAw Times www.lawtimesnews.com INSURANCE DEFENCE boutique Boghosian and Allen LLP, says he wishes more judges would call out questionable evi- dence given by experts appear- ing before them. "Sometimes, judges are too quick to accept evidence at face value from an expert, regardless of its quality," he says. Since 2010, amendments to Ontario's Rules of Civil Proce- dure have required experts to sign Form 53, which confirms their duty to the court above and beyond the party that re- tained them. The new form was part of a suite of changes designed to tackle bias following the scath- ing report issued by former Ontario Appeal Court justice Stephen Goudge as part of his public inquiry into the case of forensic pathologist Charles Smith. His faulty autopsy conclu- sions were blamed for a number of wrongful convictions involv- ing parents accused of killing their children. Despite that shock to the system, Boghosian says, less blatant instances of bias arise frequently. "There are too many so- called experts out there who make themselves available to litigants, and are so anxious to get repeat business from law firms or insurance companies that they are prepared to bend or ignore facts and arrive at the conclusion they think the client wants to hear. "It's a less direct form of bias, but I think it's more of a reality than is acknowledged in the sys- tem, especially by the judiciary," he says. The issue is particularly prevalent in certain types of cases, according to Boghosian. "In accident reconstruction, origin-of-fire investigations and real estate appraisals, experts have huge scope for subjective judgments, which is usually ap- plied in favour of the person re- taining them," he says. However, in many cases, Bog- hosian says, word gets around the bar about which experts to avoid. "Lawyers talk to each other. If I'm working in an area where I haven't had to retain someone in a while, I'll call some colleagues in the business to find out who they're using and who they're not [using]," he says. In Platnick v. Bent, a promi- nent personal injury lawyer ran into trouble after her warn- ings to colleagues on a private plaintiff 's bar chatroom about a particular Toronto physician resulted in a libel suit from the doctor. However, the case was dis- missed by a judge who found her comments "appear to have been substantially true." According to Orth, the tight- knit nature of the legal commu- nity in Ottawa makes it difficult for experts with a reputation to f ly under the radar. "I've been around the block enough times as a defence coun- sel to know that judges don't put a lot of weight in certain expert reports at pretrials," she says. "You can get a report that appears fabulous on paper in terms of the position you'd like to put forward, but if the other side is not going to be persuad- ed, then you're not going to get the matter settled, and you leave yourself open to an expensive trial where it could be picked apart." That's part of the reason why she says hiring a suspect or eas- ily led expert will rarely pay off in the long run; it's a message she also delivers to clients. "When I have conversations with them, I say there's no ben- efit to using someone like that," Orth says. "I want the good, the bad and the ugly from an expert. It's bet- ter to learn from your own per- son early on what the problems are in your case. "I'd rather that than showing up on the eve of trial, after hav- ing spent so much on the litiga- tion, only to discover that your expert's evidence is not going to carry any significant weight." Boghosian says he values an expert who can give him the unvarnished truth about a file. "There's more value in my client knowing the straight goods from the start and deal- ing with it accordingly," he says. Martin says his ideal expert will have accepted retainers from both plaintiffs and insur- ers in the recent past. "I often find I'm up against an expert that typically only ap- pears for plaintiffs; a true hired gun. I tend to veer away from those experts as their CV lacks the necessary objectivity," he says. "My practice is retain some- one who is more balanced in their approach." LT Continued from page 13 Judges too quick to accept expert evidence? What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-3 1 2016-10-12 10:02 AM There are too many so-called experts out there who make themselves available to litigants, and are so anxious to get repeat business from law firms or insurance companies that they are prepared to bend or ignore facts and arrive at the conclusion they think the client wants to hear. David Boghosian Morgan Martin says he has on occasion cancelled a planned retainer after a search turned up unimpressive results for an expert.

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