unit 1 CR 1.3.docx
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Unit 1 – Course Reader 1.3
Experts in Court – A View from the Bench
What do judges expect of an expert and how should experts be prepared?
Define what constitutes an expert
Develop the theory of the case
Choose your expert wisely
Brief the expert
Qualify the expert
How did we get to all of these rules?
In last 25 years, use of expert testimony has dramatically increase
Ironically, as expert testimony gained broader acceptance, the legal system found
themselves increasingly troubled by where all of this was taking the legal process
Mohan test developed
Good reasons for these rules
o Judge and jury swear an oath to render a just and true decision whereas the
expert takes no such oath
o Judge and jury are considered neutral/unbiased whereas the expert is engaged
by one side or the other
Use common sense when interpreting expert testimony!
Is R v. McIntosh and McCarthy (1997) a trendsetter?
How does it all look from where I (Justice Jamie Saunders) sit?
The importance of neutrality and objectivity: the role of the expert is not that of an
advocate but rather to speak to facts and not allow their opinions to be coloured by
irrelevant information; experts should also remember it is not their job to determine
credibility of plaintiffs/other witnesses or experts
Questioning the expert: properly prepare both for your own direct examination and the
anticipated cross-examination by opposing counsel
Challenging the other expert: work closely with the lawyer who retained you to develop
the means to challenge the admissibility of the other side’s expert’s testimony/report
Persuasive advocacy: be creative (use diagrams, charts, graphs, photos, drawings); be
memorable and choose wording wisely
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