Techniques in Crossing the Scientific Witness Jane Clark

Transcription

1 Techniques in Crossing the Scientific Witness Jane Clark 2011 CBA Spring Advocacy Program, May 5, 2011 Advocacy for the Courts in Intellectual Property Matters: The Art of Cross-Examination, Ottawa,

2 Techniques in Crossing the Scientific Witness AGENDA Legal Principles and Practical Review: General Issues Attacking qualifications Attacking the factual assumptions underlying the opinion Exposing the opinion as being a matter of judgment Chain of custody 2

3 General Issues 3

4 Expert Evidence General Cross-examination of an expert is a battle, not a skirmish. It requires marshalling of resources, exhaustive preparation, keenness of mind, total concentration and an ability to react quickly. Armed with only hours of preparation, the advocate must confront, challenge and discredit someone whose lifetime work it has been to master the subject in issue. Ian A. Blue, Q.C. "Cross-Examining the Expert", =hein.journals/aqrty7&div=8&id=&page=i 4

5 Expert Evidence General Modern rule allows opinion evidence from witnesses who qualify as experts. Admissible as an exception if needed to assist the fact finder to appreciate the facts if ordinary persons are unable to do so. 5

6 Expert Evidence General Admissibility Criteria Evidence is relevant to an issue; Evidence is necessary to assist the trier of fact; Evidence does not violate an exclusionary rule; and Witness is a properly qualified expert. R. v. Mohan, [1994] 2 S.C.R. 9 at p

7 Expert Evidence General Scientific experts have a different approach and distinguish between: validity (does the principle support what it purports to show); reliability (does the application produce consistent results); accuracy (degree of conformance to the correct value or a standard). Judges and lawyers tend to coble these distinct scientific concepts together. Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3rd ed., (Markham: LexisNexis Canada Inc., 2009), at 807, para

8 Expert Evidence General Amendments to the Federal Courts Rules including code of conduct; Code requires inter alia: Description of qualifications; Facts and assumptions on which the opinions are bases; Identifying insufficiency of data or research. Failing to do so is an additional cross-examination point 8

9 Expert Evidence General Sopinka and Geoffrey Adair s, authors of Canadian trial books, between them, have ten tips for cross-examining experts. Three of their ten tips overlap, two of which are addressed in this presentation and one of which is in Mr. Adair s list only as a place of last resort 9

10 Expert Evidence General Points on Cross-Examining an Expert Sopinka, The Trial of an Action, at Geoffrey Adair, On Trial* at 413. refute basic assumed or founded facts if a factual foundation is sound then the theory of the expert should be attacked weight of qualifications bias define and attack the facts and assumptions underlying the opinion challenge the expert s opinion or theory directly question the validity of the scientific research or methodology (or lack of same) supporting the opinion cross-examination on works of authority demonstrate the opinion as a matter of judgment upon which reasonable professionals may differ examine the expert s previous writings on the subject cross-examine in plain English and force the expert to do same prior and inconsistent statements 10

11 ATTACKING QUALIFICATIONS 11

12 Attacking qualifications Seldom will an expert be presented who does not possess sufficient qualifications to entitle him or her to give opinion evidence on one subject or another. Cross-examination may appear to be a lost cause, especially in light of the low standard required to qualify as an expert witness. - Geoffrey D. E. Adair, On Trial Advocacy Skills Law and Practice, 2nd ed, (Markham, LexisNexis Canada Inc., 2004) at

13 Attacking qualifications Legal Issues Mohan criteria: a witness must be a properly qualified expert (have special knowledge beyond that of the trier of fact, through study or experience in respect of the matters in which he or she is to testify). Through education Through training R. v. Mohan, [1994] 2 S.C.R. 9 at p. 25; R. v. Marquard, [1993] 4 S.C.R. 223 at p

14 A distinction between witnesses with working knowledge of a specific area and a generalist Deficiencies within an area go to weight of the evidence, not admissibility. R. v. Marquard, [1993] 4 S.C.R. 223 at p. 243, citing J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992) at p Attacking qualifications 14

15 Practical Issues Timing of objections - ASAP Rule 55.2, Rule 262 Trial Schedule may specify dates to exchange qualifications and objections. As witness tendered, can be a voir dire on qualifications During a testimony if it is apparent the expert is testifying beyond expertise. Attacking qualifications 15

16 Attacking qualifications Do you go there? Consider whether any real prospect of successful attack given low standard Is it wasteful of time/ counsel s credibility? Will it bolster credibility? Go there: To show the witness does not possess the expertise. To show the witness is not a true expert (weight). Subject matter is not of assistance to the court. 16

17 Attacking qualifications Common grounds of attack Does not have proper qualifications in skill set attributed to the person skilled in the art in the proceedings; Not qualified at the relevant time Not qualified on aspects of the opinion. eg qualified psychiatrist but 90% of the prescriptions written by GP s 17

18 Attacking qualifications Points from CV (Publications & Presentations) Did the expert ever publish or present in the area at issue. If yes, is it within the right time frame. If yes, what journals were the publications in. Are they peer reviewed? Are they leading journals for that profession? Is the expert a member of the peer review panel? Are there letters to the editor criticizing the publication? Were presentations at leading industry meetings? 18

19 Points from CV (Experience & Credentials) Does the expert have any real work experience eg academic only, research only? for pharmaceutical use cases, do they have clinical experience (see patients) Work in a teaching hospital? Academic success Where studied (leading institution in the field or otherwise leading) & with whom (leaders in field?) Specialty accreditations? Is the expert a member of or enjoy positions in the specialty professional association? Attacking qualifications 19

20 Attacking qualifications Publications and Electronic Searches Are there publications not on the CV? Interviews? Previous testimony? What are others saying about this expert? 20

21 ATTACKING THE FACTUAL ASSUMPTIONS UNDERLYING THE OPINION 21

22 ATTACKING THE FACTUAL ASSUMPTIONS Time and again trial judges discard expert opinions on the basis that either the underlying facts cannot be accepted or the expert is unaware of certain material facts. Geoffrey D. E. Adair, On Trial Advocacy Skills Law and Practice, 2nd ed, (Markham, LexisNexis Canada Inc., 2004) at

23 ATTACKING THE FACTUAL ASSUMPTIONS Effective way to destroy the usefulness of expert opinion Alert the court to any significant instance where the expert: Is misinformed; Omitted relevant facts; Facts are not proven. 23

24 ATTACKING THE FACTUAL ASSUMPTIONS Expert opinion is only as strong as the underlying factual basis. If facts rejected, the experts opinion must be rejected as well. While hearsay is allowed, distinction between hearsay that regularly forms the massive material upon which an expert relies in the course of his or her expertise hearsay going directly to a matter in issue and comes from a source that is inherently suspect. 24

25 Patent examples Process is not as represented Assumed common general knowledge that cannot be proved (public but not common general knowledge) 25

26 EXPOSING THE OPINION AS BEING A MATTER OF JUDGMENT 26

27 EXPOSING THE OPINION AS BEING A MATTER OF JUDGMENT As a tactic of last resort, the crossexaminer may be able to extract from the expert the concession that his or her opinion is one upon which respected competent professionals in that field of expertise may disagree as it is a matter of professional judgment or opinion. Geoffrey D. E. Adair, On Trial Advocacy Skills Law and Practice, 2nd ed, (Markham, LexisNexis Canada Inc., 2004) at

28 Opinions are a matter of judgment. Present theories in subject area and expose range of scenarios/ theories reasonably held. This expert s theory is one in the range. Burdens relevant EXPOSING THE OPINION AS BEING A MATTER OF JUDGMENT 28

29 CHAIN OF CUSTODY 29

30 CHAIN OF CUSTODY Underlying chain of custody for the material tested needs to be proved from acquisition to testing Need to show article is genuine and authentic and not subjected to alternation, substitution or contamination. 30

31 Thank You Jane Clark Tel: montréal ottawa toronto hamilton waterloo region calgary vancouver moscow london