In the most recent issue of
The Lawyers Weekly, Erik Arnold summarizes a study he wrote with Errol Soriano on
trends and practices concerning the use of expert evidence in common law jurisdictions around the world.
The study, which was commissioned by the Canadian Institute of Chartered Business Valuators, looked at the situation in Canada, the United State
s, Britain, Australia, and in international arbitration.
As Arnold writes:
"In virtually every jurisdiction surveyed, adversarial bias was
identified as the single most important problem with expert opinion
evidence. Guarding against what we term 'advocacy by experts' has become
a major focus for stakeholders."
"In response to these concerns,
recent amendments to the rules of civil procedure in various
jurisdictions have sought two common objectives — formally defining the
expert’s duty to the court and placing limits on the allowable scope of
the expert’s evidence. Reporting requirements in various jurisdictions
now mandate, at a minimum, positive affirmation of the expert’s roles,
responsibilities and, in particular, their duty to the court. The
persistent concern regarding experts has also led to reduced autonomy
regarding the content of their reports. "
"The cost of litigation
was the next most cited problem with expert evidence, and it was a close
second. The view that expert evidence is expensive is not new. Until
recently, however, the dialogue amounted to resigned complaint and not
actionable reform. This is beginning to change."
"Rules committees
and other stakeholders are now focused on the possible substance and
form of procedural reform, the objective being to reduce costs of
opinion evidence while maintaining the tenets of the adversarial
judicial system favored in each jurisdiction. As a result, innovative
approaches to expert evidence are emerging."
The
full text of the report is available on the site of the Canadian Institute of Chartered Business Valuators.
Labels: comparative and foreign law, courts, evidence, litigation
