September 18, 2006

Legal Issues

Expert court witnesses needed to testify

Knowledge essential, public speaking skills are critical

PETER KENTER

correspondent

Locals know it primarily as “the cement case” — in 1992, 137 homeowners filed suit against a concrete supplier and a cement producer. The homeowners complained of efflorescence, cracking, delaminated parging, and basement moisture.

After a five-month trial, a judge concluded that problems stemmed from high concentrations of alkali and sulphates in the fly ash contained in the concrete used to build the homes, awarding the plaintiffs $20 million in damages.

Expert witnesses from across Canada, the U.S. and Europe are often employed by various parties to help clarify the technical issues surrounding a case.

“It’s one of the few cases in Canada where we’ve seen concrete experts from all over the world providing evidence,” says Peter Braund, a partner with the Toronto office of Borden Ladner Gervais LLP.

“You don’t have to convince yourself the person is an expert —you have to convince the court.”

Peter Braund

Borden Ladner Gervais LLP

Expert witnesses are available to anyone who feels they’ll be an asset to their case, says Braund. It can be challenging for a plaintiff or defendant to find an expert to testify, regarding specialized construction knowledge involving such materials as concrete.

“Anyone with enough knowledge can be an expert witness,” says Braund.

“But you have to look at it as the court would. Does the witness have experience, professional qualifications, requisite local licenses, professional equivalents and other important designations? You don’t have to convince yourself the person is an expert — you have to convince the court.”

While a lawyer will assist a client in locating an expert witness, the client can also provide input.

“We might ask the client if they know of someone professionally, or if a trade or professional organization can recommend someone. Perhaps they’ve heard an engineer speaking at a seminar or conference who happens to be an expert in concrete.”

Typically, the expert will first provide a written brief outlining his or her opinions on the technical matters surrounding the case. If the written brief appears sound, the expert witness will be considered for suitability in court.

“The key is whether the expert can communicate well orally,” says Braund.

“Nine out of 10 times, the expert must explain the issues and educate the parties — put forth the building blocks of knowledge so the opinion makes sense and holds together. Some of the most erudite experts may be unable to express themselves in public, or make technical matters simple enough to be understood. They may get flustered under the stress of cross-examination from an adverse lawyer. Having previous trial experience is a definite asset. “

An expert witness also can’t be perceived as being prejudiced toward the client they’re representing, or provide what appears to be a pre-determined opinion. And unlike dramatized television trials, expert witnesses aren’t likely to pull a particularly damning piece of testimony out of a hat at the trial.

“The written report of the expert containing his or her findings and opinions must be served on the other parties no later than 90 days before the trial begins, so both sides know what will be said,” says Braund.

“And because the witness is supposed to be impartial, this person may be asked questions during cross-examination that may be damaging to the case. That’s just another of the differences between real-life civil litigation in Canada and U.S. tv drama.”

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