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New rules on experts confuse Canadian solicitors

New rules governing the use of expert witnesses in the Canadian civil justice system have increased costs and caused confusion, according to lawyers who retain them.

A series of reforms designed to make experts more accountable while reducing costs and delay associated with their evidence came into force on January 1st this year.

The changes included experts being asked to sign a form 53, which confirms their duty to the court above and beyond the party that retained them. Most solicitors approve of form 53 as a useful extra layer of accountability for the expert.

The rules also demand detailed descriptions of the experts’ qualifications, research history, and factual assumptions on which they base their findings, most of which can be covered by an Expert Witness profile and an up to date downloadable C.V.

Most compaints concern the timetable for production of reports, previously expert witness reports were exchanged 90 days before trial. Now parties must distribute them 90 days before the pretrial conference. This has resulted in the expert preparing reports for smaller, less contentious issues that used to get put off until closer to the trial date and may have never have been necessary if the case settled before trial. This causes extra costs for the legal parties.

This will also force Solicitors to be quicker in instructing and retaining experts.

Canadia experts see the reforms as a small step in the right direction, welcoming any attempt to streamline the system but says there have been negative side effects. For example, the new rules prevent experts from performing a consultancy role for lawyers because it could be considered advocacy.

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