The Expert Use of Experts in ADR: Views from Counsel Table
By David Tupper & Keith Marlowe
The expert use of experts and their reports in mediations and arbitrations is often the factor that can win or lose a case. Counsel discusses the do’s and don’ts of retaining, preparing, and using experts in ADR.
The effective, well thought out use of experts and their reports is the factor that often determines whether a mediation or arbitration will succeed or fail. In that regard, experts are fairly regarded as a key player in alternative dispute resolution.
Central to the effective, well thought out use of experts are early retainers. When it comes to litigation and arbitration procedure, lawyers are experts in their own right. However, lawyers generally lack the kind of subject matter expertise that comes from spending a professional career immersed in a particular field or discipline. Early access to this expertise – ideally even before the claim is commenced – helps counsel and clients to explore and develop their theory of the claim (or defences to a likely claim), particularly when the claim is likely to incorporate significant technical or specialized issues.
Experts also play an important role in preparing counsel to examine the opposing party’s fact witnesses and experts. Depending on the rules applicable to the arbitration, pre-arbitration discovery rights may be significantly curtailed relative to the usual litigation rules of procedure and evidence. When pre-arbitration discovery is permitted in an arbitral proceeding, discovery is often time-limited or restricted to one fact witness per party. Accordingly, it is important to make every question count. In that regard, experts can provide effective assistance to counsel by helping counsel develop the types of questions that counsel should ask of the witnesses at the examinations.
Apart from formal discovery, one of the most effective ways that an expert can assist is by meeting with the opposing party’s experts to test, challenge, and better understand their opinions (and the assumptions underlying those opinions). Many arbitrators will invite experts to meet and confer in advance of the arbitration, on a without prejudice basis, to identify the issues on which the experts agree and disagree. By doing so, the experts may clarify and resolve any issues, and identify the areas of agreement and the remaining areas of disagreement.
Aside from the discussion above, there are a number of “do’s and don’ts” that counsel should consider to make the best use of experts in alternative dispute resolution, including the following:
- Begin the process of identifying and retaining an expert at an early stage in the proceeding. Do your homework – review the expert’s background, publications, previous proceedings in which they testified, and fields of expertise;
- Ensure that the expert is properly and adequately instructed about the scope of their duties, including the duty to provide an independent and impartial opinion to the mediator or arbitrator;
- Clearly explain to the expert that they may be examined in advance of the arbitration, and that they will likely be cross-examined about their expert report at the arbitration;
- Provide all of the facts and documents – good and bad – to your expert, and ensure that you communicate any assumptions that are not clear from those facts and documents;
- Work collaboratively with your expert to plan and develop the list of deliverables and the expected deadlines for the various steps in the mediation or arbitration;
- Stay in close contact with your expert and be responsive to your expert’s questions that arise as they are performing their work. Inform your expert about changes to the mediation or arbitration schedule that are likely to affect the expert’s work;
- Ensure that the expert’s report is responsive to their list of issues and is written in clear, easily understandable language – this is particularly important when the expert’s opinion relates to particularly complex or technical concepts;
- Use your expert to assist with the discovery process;
- Have your expert independently test the findings and conclusions expressed in the opposing party’s expert reports;
- Consider holding a “meet and confer” session of the experts to potentially advance the case to a negotiated resolution or to narrow the issues for the mediation or arbitration;
- Don’t underestimate the importance of preparing your expert to testify at the arbitration. Conduct mock examinations of your own expert, and test and challenge every assumption and conclusion in their written work and oral evidence; and
- If the expert will be a testifying expert, then consider whether some of the above steps should be undertaken by a separate consulting expert instead to preserve the independence and impartiality of your testifying expert.
David Tupper is the head of the litigation and dispute resolution practice in the Calgary office of Blake, Cassels & Graydon LLP. David is widely recognized as one of Canada’s leading litigation lawyers, having won accolades as Alberta Litigator of the Year (Benchmark Canada – 2017, 2018), Lawyer of the Year (Best Lawyers – 2019 Calgary Director and Officer Liability Practice, 2018 – Calgary Product Liability Law, 2017 – Calgary Class Action Litigation), and Leading Lawyers in Canada (Legal 500 Canada 2015-2018).
Keith Marlowe is a partner in the litigation and dispute resolution group at Blake, Cassels & Graydon LLP. Keith practices corporate/commercial litigation with a special focus on insurance coverage and defence, franchise disputes, intellectual property litigation, and class actions. Keith is a member of bars in Canada, the United States, and England & Wales.