EXPERT WITNESS RULES, RULES AND MORE RULES. PHILIP LEVI, CFE, FCPA, FCA, CPA/CFF, CA-IFA Partner Levi & Sinclair, LLP Quebec, Quebec Canada

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1 The role of the expert witness is to assist the court through the provision of an independent and objective opinion about matters coming within the expertise of the witness. This duty is paramount. The new Rules streamline the qualification of experts and provide a code of conduct clarifying the duties and responsibilities of the expert witness in relation to the Courts. Learn about the new Rules in Canada and the Provinces governing expert witnesses, and how they may impact your investigation and testimony. PHILIP LEVI, CFE, FCPA, FCA, CPA/CFF, CA-IFA Partner Levi & Sinclair, LLP Quebec, Quebec Canada Mr. Levi graduated in 1970 from McGill University and obtained his CA designation one year later and was licensed as a Certified Public Accountant in Maine, Florida and North Carolina in In 1991 Mr. Levi was recognized by the Ordre des Comptables Agréés du Québec by conferring upon him the title fellow of the Ordre and in 2002, Mr. Levi was elected to the Board of Directors of the Quebec Order of Chartered Accountants and to its executive committee in In 1992 he was named a Certified Fraud Examiner and became founding president of the Association's Montreal Chapter in He was re-elected as president in 1995 and selected as the recipient of the Distinguished Achievement Award of the Association of Certified Fraud Examiners in In 1997 Mr. Levi was elected to the Board of Regents of The Association and was selected by the Regents to be Vice-Chairman of the Board. In 2007, Mr. Levi was selected by the 40,000 member Texas based Association of Certified Fraud Examiners as the CFE of the Year. In 2000, Mr. Levi became one of 18 in Québec to be approved by the Alliance for Excellence in Investigative and Forensic Accounting of the Canadian Institute of Chartered Accountants and received the Investigative and Forensic Accountant designation. Mr. Levi was a member of the steering committee for the AICPA s Annual Conference on Fraud for several years and a member of its Fraud Advisory Committee. In 2008, Mr. Levi was recognized as Certified in Financial Forensics by the American Institute of Certified Public Accountants. Mr. Levi has been invited to speak at Canadian and U.S. fraud conferences and has had numerous articles published on this subject. Mr. Levi has been a member of the teaching faculty of the Association of Certified Fraud Examiners since 1995 and was the technology editor and is a member of the editorial board of its magazine, The Fraud Magazine. 2012

2 Mr. Levi has been engaged to provide expertise and testimony for the Crown Prosecutor of the Province of Quebec, The Quebec Provincial Police, the Montreal Police Commercial Crime Unit, the Syndic of the Order of Chartered Accountants of Quebec, Federal and Ontario government agencies and numerous public & private Canadian Corporations. During his 43 year career, he has testified in Federal Court in the States of New York, Pennsylvania, Texas, California, and Colorado, numerous times in the Quebec, Ontario and British Columbia court systems as well as the Supreme Court of The Bahamas and St. Kitts and Nevis. Association of Certified Fraud Examiners, Certified Fraud Examiner, CFE, ACFE, and the ACFE Logo are trademarks owned by the Association of Certified Fraud Examiners, Inc. The contents of this paper may not be transmitted, re-published, modified, reproduced, distributed, copied, or sold without the prior consent of the author. 2012

3 Define Expert Testimony It is a time-honored rule of common law (and civil law) jurisdictions that witnesses ought only to relate their personal observations of events. They are not to attempt to enter their opinions into evidence in a court of law. The major exception to this is the expert witness who, because of his knowledge or experience in a specific area, is allowed to give opinion evidence. Generally, the rationale behind this is that judges can t possibly be knowledgeable in all areas of human activity and in any event, many cases before the courts turn on a scientific issue or upon special knowledge. With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. An expert s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary. Supreme Court of Canada, R. v. Abbey, [1982] 2 S.C.R. 24 Admission of expert evidence depends on the application of the following criteria: (a) Relevance; (b) Necessity in assisting the trier of fact; (c) The absence of any exclusionary rule; and (d) A properly qualified expert. Supreme Court of Canada, R. v. Mohan, [1994] 2 SCR

4 The Voir Dire A proposed expert witness has to first be qualified; a process of submitting the expert s qualifications to the court, usually done by having the witness depose that his curriculum vitae, then tendered to the court, is truthful in all regards. If the judge accepts the witness as an expert within the stated area of qualification, that witness can then give opinion evidence. The judge is not bound to any expert evidence and often has to weigh and prefer the evidence of one expert against that of another. An expert must first produce an expertise report that is introduced into the court record. Of importance is the rule that the expert may only testify on what is contained in the report. Therefore, it is important to consider all possible issues that might need to be brought forward to the trier of fact, and incorporate them into the report. Quebec Rule Except with leave of the court, no expert witness may be heard unless his written report has been communicated and filed in the record in accordance with the provisions of Sections I and II of Chapter I.1 of this Title. However, in the case of a motion other than a motion to institute proceedings, a copy of the report must be served on the parties at least ten days before the date of the hearing, unless the court decides otherwise. The out-of-court testimony of an expert witness, filed into record in whole or as abstracts, may stand in lieu of his written report

5 BC Rule 11-7 Reports must be prepared and served in accordance with rules: (1) Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless (a) That evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and (b) Any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7). PROFESSIONAL RULES AND CODES CICA Standard Practices for Investigative and Forensic Accounting Engagements (Nov 2006) These are the minimum standard practices that should be met by all chartered accountants conducting IFA engagements (collectively referred to in this document as IFA practitioners ) IFA standard practices are different from IFA engagement procedures. Standard practices relate to the IFA practitioner s professional skills, the performance of his or her engagement, and the preparation of his or her report. IFA procedures are the specific acts or steps performed by the practitioner to attain his or her objectives in the particular engagement Investigative and forensic accounting engagements are those that: (a) Require the application of professional accounting skills, investigative skills, and an investigative mindset; and

6 (b) Involve disputes or anticipated disputes, or where there are risks, concerns or allegations of fraud or other illegal or unethical conduct These IFA standard practices should be applied to all IFA engagements, and to work performed by all individuals on such engagements In the context of this document, work means the work of IFA practitioners, including that performed by other individuals, within the domain of the IFA engagement IFA practitioners accepting IFA engagements in a jurisdiction other than Canada should have adequate knowledge of, and meet the relevant standards and regulatory and legal requirements applicable to, that jurisdiction. The primary jurisdiction that Canadian practitioners will encounter is the United States. The U.S. Federal Rules of Civil Procedure and the Daubert rules are described at the end of the course material. In addition, reference should be made to AICPA Practice Aid 10 1 Serving as an Expert Witness or Consultant. The remainder of the IFA standards consists of the following sections: 200. Engagement Acceptance 300. Planning & Scope of Work 400. Information Collection & Analysis 500. File Documentation 600. Reporting 700. Expert Testimony

7 The two most important sections are 400 and 600. Without limiting the importance of the entire standard, some of the most relevant standards are highlighted below IFA practitioners should consider the relevance of all information that arises during the course of an IFA engagement IFA practitioners should identify, analyze, assess and compare all relevant information, assess substance over form, and develop and test, as needed, hypotheses for the purpose of evaluating the issues in the IFA engagement IFA practitioners should evaluate the reasonableness and consistency of all estimates and assumptions having regard to the IFA practitioners competence, expertise and other available relevant information IFA practitioners should review all information received during an IFA engagement, and consider its relevance, reliability, reasonableness, completeness and consistency with other known engagement information IFA practitioners should consider and address reasonable alternative theories, approaches and methodologies that may be relevant to their work All reports should include the following information: (a) the name(s) and professional designation(s) of the IFA practitioners and/or the firm responsible for the report; (b) who retained the IFA practitioner(s) and to whom the report is directed; (c) the date of the report;

8 (d) the effective date for the findings and conclusions, if different from the date of the report; (e) the objectives and circumstances of the IFA engagement and the purpose for which the report is being prepared; (f) identification of the documents and sources of information relied upon to prepare the report; (g) the extent of reliance on the work of others; (h) the techniques and procedures performed when preparing the report, including a description of the approach(es) and rationale for selecting such approach(es); (i) any underlying assumptions and the reasons for relying on such assumptions; (j) the definition(s) of any technical terms and interpretations used in the report; (k) the findings and conclusions reached and any supporting analyses and charts; (l) sufficient information to enable the user to relate the findings and conclusions to the supporting analyses, information and documents; (m) any restrictions on the use of the report; and (n) any scope or other limitations affecting the findings and conclusions. Adherence to the above reporting standards should keep the practitioner onside with most other rules and codes. Provincial Institute and Ordre s Codes of Ethics All of the rules and codes that govern the role of the expert witness will bring the following basic attributes to the reliance that will be placed on the expert s opinion. The courts do not consider an expert to be excluded simply because he may not be independent from one of the parties, in the context of a client professional relationship (e.g., a CA who acts as an expert for a client of the firm in which

9 he or she is a partner). This potential conflict of interest will impact the weight placed on the expert s testimony by the trier of fact. The Ontario Court General Division has stated: An expert witness is called to provide assistance to the court in understanding matters which are beyond the expertise of the trier of fact. Such a witness is not to be an advocate for one party, but an independent expert. Expert witnesses are of course paid a fee by the party calling them, which in itself may be considered to affect their independence. The court will examine the demeanor of an expert in the way the evidence is given, in particular whether the expert takes on the role of an advocate for one side, or remains objective, in weighing the evidence and attributing value to the opinion. If the expert does adopt the attitude of a neutral, then the fact that he is being paid or that the defendant is his client will cause little or no concern, but that will not be the case if he appears to lose his neutrality. In that case the value of his evidence can diminish significantly. However, a lack of independence or conflict of interest, as defined by the applicable Code of Ethics may have a more serious impact. Careful attention should be placed on the following: 1. Independence a. Family relationship b. Business interests 2. Objectivity 3. Due Care 4. Training and supervision 5. File retention 6. Engagement letters 7. Liability insurance

10 Chartered Business Valuators Standards The CBV has been an important part of numerous types of litigation and its calculations and opinions generally incorporate a larger degree of assumptions and estimates than other forms of financial expertise. The importance of this field of practice has been recognized in the CBV Handbook as a separate series of standards, including Standard 310, 320, and 330. The CBV s standards are codified in the CBV Handbook and generally apply to all three types of valuation reports: Comprehensive Valuation Report Estimate Valuation Report Calculation Valuation Report Standard 310 includes minimum reporting requirements that are similar to those in the IFA standards, as well as specific reporting requirements for valuation reports. Due to the highly specialized field, the valuation report must also contain numerous definitions and it is incumbent upon the valuator to ensure that these definitions are in accordance with the generally accepted application for the terminology used in the report. Standard 320 relates to the scope-of-work standards and are very similar to those found in the CICA Handbook for auditing standards as they relate to: Adequate technical training, proficiency, due care, and objectivity Adequate planning and proper execution of all work Sufficient evidence to support the conclusions in the report

11 Similar to the IFA standards, the CBV must consider the assumptions and determine their reasonableness and appropriateness. Standard 330 relates to file documentation and includes: A copy of the final report An engagement letter (not mandatory but recommended) Summaries of key meetings, discussions, and correspondence Information relied upon Approach taken and reasoning for its selection Techniques used and reasoning for their selection Client representation letter, if deemed necessary As for all documentation, the question of confidentiality will be important, in particular with the content and manner in which the above is written. ACFE Code of Ethics All Certified Fraud Examiners must meet the rigorous criteria for admission to the Association of Certified Fraud Examiners. Thereafter, they must exemplify the highest moral and ethical standards and must agree to abide by the bylaws of the ACFE and the Certified Fraud Examiner Code of Professional Ethics. 1. A Certified Fraud Examiner shall, at all times, demonstrate a commitment to professionalism and diligence in the performance of his or her duties. 2. A Certified Fraud Examiner shall not engage in any illegal or unethical conduct, or any activity which would constitute a conflict of interest. 3. A Certified Fraud Examiner shall, at all times, exhibit the highest level of integrity in the performance of all professional assignments and will accept only

12 assignments for which there is reasonable expectation that the assignment will be completed with professional competence. 4. A Certified Fraud Examiner will comply with lawful orders of the courts and will testify to matters truthfully and without bias or prejudice. 5. A Certified Fraud Examiner, in conducting examinations, will obtain evidence or other documentation to establish a reasonable basis for any opinion rendered. No opinion shall be expressed regarding the guilt or innocence of any person or party. 6. A Certified Fraud Examiner shall not reveal any confidential information obtained during a professional engagement without proper authorization. 7. A Certified Fraud Examiner will reveal all material matters discovered during the course of an examination which, if omitted, could cause a distortion of the facts. 8. A Certified Fraud Examiner shall continually strive to increase the competence and effectiveness of professional services performed under his or her direction. LEGAL CODES Federal Court s Rules To ensure that expert witnesses understand their independent advisory role to the Court, a Code of Conduct has been included as a Schedule to the Federal Courts Rules. In addition, the new rule 52.2, applicable to both applications and actions, requires counsel to provide an expert witness with a copy of the Code of Conduct and to file a certificate signed by the expert acknowledging that the expert agrees to be bound by the Code of Conduct

13 To assist in streamlining the qualification process and to identify situations where there are disputes as to whether a witness is qualified to testify as an expert, rule 52.2 requires that the expert witness s proposed area of expertise be identified in the report, and that a copy of the expert s curriculum vitae accompany the report. Expert Witnesses Expert s affidavit or statement 52.2 (1) An affidavit or statement of an expert witness shall (a) set out in full the proposed evidence of the expert; (b) set out the expert s qualifications and the areas in respect of which it is proposed that he or she be qualified as an expert; (c) be accompanied by a certificate in Form 52.2 signed by the expert acknowledging that the expert has read the Code of Conduct for Expert Witnesses set out in the schedule and agrees to be bound by it; and (d) in the case of a statement, be in writing, signed by the expert and accompanied by a solicitor s certificate. Failure to comply: (2) If an expert fails to comply with the Code of Conduct for Expert Witnesses, the Court may exclude some or all of the expert s affidavit or statement. Limit on number of experts: 52.4 (1) A party intending to call more than five expert witnesses in a proceeding shall seek leave of the Court in accordance with section 7 of the Canada Evidence Act

14 The following are not new rules but are included for their relevance to expert witness testimony. Objection to expert: 52.5 (1) A party to a proceeding shall, as early as possible in the proceeding, raise any objection to an opposing party s proposed expert witness that could disqualify the witness from testifying. Expert conference: 52.6 (1) The Court may order expert witnesses to confer with one another in advance of the hearing of the proceeding in order to narrow the issues and identify the points on which their views differ. Presence of parties and counsel: (2) Subsection (1) does not preclude the parties and their counsel from attending an expert conference but the conference may take place in their absence if the parties agree. Presence of judge or prothonotary: (3) The Court may order that an expert conference take place in the presence of a judge or prothonotary. Joint statement: (4) A joint statement prepared by the expert witnesses following an expert conference is admissible at the hearing of the proceeding. Discussions in an expert conference and documents prepared for the purposes of a conference are confidential and shall not be disclosed to the judge or prothonotary presiding at the hearing of the proceeding unless the parties consent

15 See the attached sample of Form 52.2 Rule 52.2 Certificate Concerning Code of Conduct for Expert Witnesses. SCHEDULE (Rule 52.2) CODE OF CONDUCT FOR EXPERT WITNESSES GENERAL DUTY TO THE COURT 1. An expert witness named to provide a report for use as evidence, or to testify in a proceeding, has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise. 2. This duty overrides any duty to a party to the proceeding, including the person retaining the expert witness. An expert is to be independent and objective. An expert is not an advocate for a party. Experts Reports 3. An expert s report submitted as an affidavit or statement referred to in rule 52.2 of the Federal Courts Rules shall include: (a) a statement of the issues addressed in the report (b) a description of the qualifications of the expert on the issues addressed in the report (c) the expert s current curriculum vitae attached to the report as a schedule (d) the facts and assumptions on which the opinions in the report are based; in that regard, a letter of instructions, if any, may be attached to the report as a schedule (e) a summary of the opinions expressed (f) in the case of a report that is provided in response to another expert s report, an indication of the points of agreement and of disagreement with the other expert s opinions

16 (g) the reasons for each opinion expressed (h) any literature or other materials specifically relied on in support of the opinions (i) a summary of the methodology used, including any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out, and whether a representative of any other party was present (j) any caveats or qualifications necessary to render the report complete and accurate, including those relating to any insufficiency of data or research and an indication of any matters that fall outside the expert s field of expertise (k) particulars of any aspect of the expert s relationship with a party to the proceeding or the subject matter of his or her proposed evidence that might affect his or her duty to the Court 4. An expert witness must report without delay to persons in receipt of the report any material changes affecting the expert s qualifications or the opinions expressed or the data contained in the report. Expert Conferences 5. An expert witness who is ordered by the Court to confer with another expert witness must: (a) Exercise independent, impartial and objective judgment on the issues addressed. (b) Endeavour to clarify with the other expert witness the points on which they agree and the points on which their views differ. Ontario Rules Amendments to the Rules of Civil Procedure, effective January 1, 2010, take on a very similar look to the new

17 Federal Rules as well as those that have surfaced in other provinces across Canada. The general theme of all of the country s rules is that expert witnesses are to act as independent experts and not advocates for their client. Rule 4.1 Duty of Expert It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, (a) to provide opinion evidence that is fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matters that are within the expert s area of expertise; and (c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. 2. The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. Taking Evidence Before Trial (4) Before moving for leave to examine an expert witness under subrule (2), the moving party shall serve on every other party the report of the expert witness referred to in subrule (1) (calling expert witness at trial) unless the court orders otherwise Experts Reports (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every

18 other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). (2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1) (2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information: (a) The expert s name, address and area of expertise. (b) The expert s qualifications and employment and educational experiences in his or her area of expertise. (c) The instructions provided to the expert in relation to the proceeding. (d) The nature of the opinion being sought and each issue in the proceeding to which the opinion relates. (e) The expert s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert s own opinion within that range. (f) The expert s reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion. (g) An acknowledgement of expert s duty (Form 53) signed by the expert. A sample of form 53 is attached to the end of these notes

19 Quebec Rules Except with leave of the court, no expert witness may be heard unless his written report has been communicated and filed in the record in accordance with the provisions of Sections I and II of Chapter I.1 of this Title. However, in the case of a motion other than a motion to institute proceedings, a copy of the report must be served on the parties at least 10 days before the date of the hearing, unless the court decides otherwise. The filing in the record of the whole or abstracts only of the out of court testimony of an expert witness may stand in lieu of his written report Where the parties have each communicated an expert s report and the reports are contradictory, the court may, at any stage of the proceeding, even on its own initiative, order the experts concerned to meet, in the presence of the parties and attorneys who wish to attend, and reconcile their opinions, identify the points which divide them and report to the court and to the parties within the time determined by the court. 414 After issue joined, the court, if it is of opinion that the ends of justice will be better attained, may, even of its own motion: 1. order that any fact relating to the case be investigated, verified and determined by an expert whom it designates; 2. refer to an accountant or practitioner the establishing or auditing of accounts or figures in any matter where accounts have to be rendered or settled and which require calculations to be made, or involve a partition of property

20 415 The court may, exceptionally, if in its opinion the difficulty and importance of the case so require, appoint three experts, or three accountants or practitioners, rather than only one. 416 The judgment appointing an expert must state clearly the duties of the person appointed and the time within which he must file his report. The clerk must, without delay, send to the person appointed a copy of the judgment. 417 The grounds for recusing an expert are the same as those provided for judges in article 234. Recusation is urged by motion, and if it is held to be well founded the court replaces the person recused. 418 The expert, before entering upon his functions, must be sworn in writing before the judge or clerk to perform his duties faithfully and impartially. If he refuses or neglects to be sworn or to carry out his duties, any of the parties may request the court to replace him. 419 The expert must give the parties at least five days notice of the time and place at which he will begin to carry out his instructions. 420 The expert may examine any thing or visit any place which he considers useful for the carrying out of his duties. He may summon witnesses by means of subpoenas issued by the clerk, administer the oath to them and hear their depositions which are taken down in writing and signed by the witness and countersigned by the expert, unless they have been taken down by a stenographer duly sworn

21 Mention must be made in the minutes of the relationship of the witnesses with the parties, and of the interest of each in the suit. 421 The expert must, before the expiry of the time fixed by the court, file in the office of the court a signed report of his proceedings and conclusions, to which is annexed evidence of his having been sworn and the documents and testimony which he has taken. The report must be sufficiently reasoned and detailed to enable the court to appreciate the facts. If there are several experts and they are unanimous, they may make one and the same report. 424 An expert who refuses or unduly delays to file his report is guilty of contempt of court. 425 Auditors and practitioners have the powers and are subject to the rules prescribed concerning experts, so far as applicable; they are bound to follow the directions of the court. Nova Scotia Rules The court may order that the number of expert witnesses, including medical witnesses, to be called at a trial shall be limited (1) Unless a copy of a report containing the full opinion of an expert, including the essential facts on which the opinion is based, a summary of his qualifications and a summary of the grounds for each opinion expressed, has been

22 (a) served on each opposite party and filed with the court by the party filing the notice of trial at the time the notice is filed, and (b) served on each opposite party by the person receiving the notice within thirty (30) days of the filing of the notice of trial, the evidence of the expert shall not be admissible on the trial without leave of the court. British Columbia Rules In British Columbia, the new Supreme Court Civil Rules came into effect on July 1, This was the culmination of a long process which began with the BC Justice Review Task Force in March Rule 11-2 Duty of Expert Witnesses: (1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party. (2) If an expert is appointed under this Part by one or more parties or by the court, the expert must, in any report he or she prepares under this Part, certify that he or she (a) is aware of the duty referred to in subrule (1), (b) has made the report in conformity with that duty, and (c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty. Requirements for report: (1) An expert s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following: (a) the expert s name, address and area of expertise;

23 (b) the expert s qualifications and employment and educational experience in his or her area of expertise; (c) the instructions provided to the expert in relation to the proceeding; (d) the nature of the opinion being sought and the issues in the proceeding to which the opinion relates; (e) the expert s opinion respecting those issues; (f) the expert s reasons for his or her opinion, including i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion. Production of documents: (8) Unless the court otherwise orders, if a report of a party s own expert appointed under Rule 11-3 (9) or 11-4 is served under this rule, the party who served the report must, (a) promptly after being asked to do so by a party of record, serve on the requesting party whichever one or more of the following has been requested: i. any written statement or statements of facts on which the expert s opinion is based; ii. a record of any independent observations made by the expert in relation to the report; iii. any data compiled by the expert in relation to the report; iv. the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and

24 (b) if asked to do so by a party of record, make available to the requesting party for review and copying the contents of the expert s file relating to the preparation of the opinion set out in the expert s report, i. if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or ii. in any other case, at least 14 days before the scheduled trial date. Pending judicial clarification, it would be prudent for practitioners to consider dividing their files into three categories: one containing only the documents described above; one that complies with the professional requirements of the expert s affiliations (e.g., CBVs, CAs, etc.); and one containing material over which counsel may wish to claim privilege. Rule 11-7 Expert Opinion Evidence at Trial Reports must be prepared and served in accordance with rules: (1) Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless (a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and (b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7). Alberta Rules In Alberta, the new Alberta Rules of Court came into force on November 1, The Rules are the result of a multiyear project led by the Alberta Law Reform Institute

25 Some of the sections of the Alberta Rules that would be of particular interest to the forensic expert are: 5.37 Questioning experts before trial: (1) The parties may agree, or in exceptional circumstances the Court may direct, that an expert be questioned by any party adverse in interest to the party proposing to call the expert witness at trial. (2) The questioning must be limited to the expert s report. (3) The Court may impose conditions about questioning with respect to all or any of the following: (a) Limiting the length of questioning; (b) Specifying the place where the questioning is to take place; (c) Directing payment of costs incurred; (d) Any other matter concerning the questioning. (4) Evidence of an expert under this Division is to be treated as if it were evidence of an employee of the party who intends to rely on the expert s report. Continuing obligation on expert: 5.38 If, after an expert s report has been provided by one party to another, the expert changes his or her opinion on a matter in the report, the change of opinion must be (1) disclosed by the expert in writing, and (2) immediately served on each of the other parties. Use of expert s report at trial without expert: 5.39(1) A party serving an expert s report may, at the same time, also serve notice of intention to have the report entered as evidence without calling the expert as a witness. (2) If a party serves a notice of intention under subrule (1), no objection may be made at trial to entering the expert s report as evidence unless, within 2 months

26 after service of the notice under subrule (1), any other party serves a statement on the party serving the notice of intention (a) setting out all or parts of the report that that other party objects to being entered as evidence under this rule, and giving reasons for the objection, or (b) serving on the party a request that the expert attend the trial for cross-examination. (3) Agreeing to have the expert s report entered as evidence without calling the expert as a witness, either explicitly or by allowing subrule (2) to operate without objection, is not an admission of the truth or correctness of the expert s report. Expert s attendance at trial: 5.40(1) A party who agrees to have all of an expert s report entered in evidence at trial, either explicitly or by allowing rule 5.39(2) to operate without objection, may, at the same time as responding to the notice of intention, serve a request that the expert be in attendance at trial for cross-examination. (2) The expert whose entire report is to be entered at trial must not give oral evidence at trial unless (a) a request that the expert attend for crossexamination has been served, or (b) the Court permits. (3) The party who requests an expert s attendance for cross-examination must pay the costs of the expert s attendance, determined under Schedule B, unless the Court is satisfied that the cross-examination is of sufficient assistance to warrant a different order about who is to pay those costs. (4) If the party proposing to enter the expert s report receives a request that the expert attend for cross

27 examination, the party proposing to enter the report may question the expert at trial. U.S. Federal Rules of Evidence Beginning with new amendments to Rule 26 that took effect on Dec. 1, 2010, counsel s communications with a testifying expert are once again generally protected from discovery. In summary, the new Rule 26 amendments: Eliminate the requirement that a testifying expert s report disclose information considered in favor of a more narrow facts or data considered standard (Rule 26(a)(2)(B)(iii)). Provide that experts draft reports or disclosures constitute trial-preparation materials generally protected from discovery (Rule 26(b)(4)(B)). Provide that, subject to three exceptions, communications between counsel and a retained testifying expert also constitute trial-preparation materials generally protected from discovery (Rule 26(b)(4)(C)). Distinguish between retained testifying experts and non-retained testifying experts, providing that a report is not required for a non-retained testifying expert but, instead, a disclosure providing a summary of the facts and opinions to which the witness is expected to testify (Rule 26(a)(2)(C)). The three exceptions are communications that: 1. Relate to compensation for the expert s study or testimony. 2. Identify facts or data that the party s attorney provided and that the expert considered in forming the opinions to be expressed

28 3. Identify assumptions that the party s attorney provided and that the expert relied upon in forming the opinions to be expressed. Rule 702: Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: 1. The testimony is based upon sufficient facts or data. 2. The testimony is the product of reliable principles and methods. 3. The witness has applied the principles and methods reliably to the facts of the case. Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute. Ladd, Expert Testimony, Vand.L.Rev, 414, 418 (1952) When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. Wigmore 1918 The Daubert Rules and Kumho Clarification Two Supreme Court cases set the primary legal precedence for the admissibility of expert testimony in federal cases:

29 1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct (1993), and 2. Kumho Tire Co. vs. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1179 (1999). These cases expanded the role of the trial judge as a gatekeeper for expert testimony. In Daubert, the court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony, and the court in Kumho clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science. The specific factors explained by the Daubert Court are: 1. whether the expert s technique or theory can be or has been tested that is, whether the expert s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; 2. whether the technique or theory has been subject to peer review and publication; 3. the known or potential rate of error of the technique or theory when applied; 4. the existence and maintenance of standards and controls; and 5. whether the technique or theory has been generally accepted in the scientific community. The Court in Kumho held that these factors might also be applicable in assessing the reliability of non-scientific expert testimony, depending on the particular circumstances of the particular case at issue

30 Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact. These factors include: 1. Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) 2. Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court may conclude that there is simply too great an analytical gap between the data and the opinion proffered ). 3. Whether the expert has adequately accounted for obvious alternative explanations. See Claar v. Burlington, N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff s condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C.Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert). 4. Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting. Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field )

31 5. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1175 (1999) (Daubert s general acceptance factor does not help show that an expert s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy. ); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff s respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on clinical ecology as unfounded and unreliable)