The Future of Expert Shopping

There has been quite a bit of controversy in the past few years about the use of experts in court, the appropriate role of experts in assisting judges, the subject matters upon which experts may testify and the ever-present problem of experts being hired by parties yet having to remain neutral in the search for the truth.

Recently, this issue has been debated outside legal circles. In the wake of high profile crimes such as that of Guy Turcotte who killed his two young children in 2009, the media has grabbed hold of these questions and asked how it is possible for an expert hired and paid by one side to actually serve the interests of justice. Such situations inevitably lead to expert wars, aking it incredibly difficult, if not impossible, for courts to pick one opinion over the other. A recent article in La Presse discusses the issue of “expert shopping” in the Turcotte case, during which psychiatric experts confronted each other for weeks at trial, a trial that eventually led to Turcotte’s acquittal, along with collective outrage in the province.

On February 6, the Association des médecins psychiatres du Québec held a press conference to issue a number of recommendations on psychiatric testimony. Most significantly, the Association criticizes the absence of standards under which a psychiatrist is called to testify and recommends that courts appoint a single expert instead of allowing counsel on each side to shop around for an expert that suits their case. It also proposes that a list be drawn up of the names of psychiatrists who may testify in court and would like courts to abide by this list only.

Although the media most often seizes upon this issue when criminal matters are at stake, experts also have a significant place in civil trials and routinely testify in court. Many have testified so often that they can almost be described as professional experts who rarely practice in their field anymore. For instance, engineers are often called upon to testify in construction or latent defect matters, or to evaluate and discover the cause of a fire. Historians may be hired for a variety of reasons, to provide opinions in trials in which the events date back many decades, or as in the case of the Zundel trial, to provide a professional opinion on the number of deaths during the Holocaust. In medical liability matters, doctors always butt heads in discussing appropriate medical procedure in a given case. Recently, in another high profile case, ballistics experts debated whether Justice Delisle of the Quebec Court of Appeal could have killed his wife.

Although technically, an expert is told that he must serve the interests of justice by assisting the court in reaching the truth, and not blindly support the party that hired him, it cannot be denied that most of the time, an expert will be extensively coached on how to answer tough cross-examination questions and skillfully avoid statements that will hurt the party that hired him.

The legal profession in Quebec has been conscious of these problems for years and now the legislature has responded by significantly amending the Code of Civil Procedure to reflect the professional orders’ concerns. The new Code provides for the appointment of a single expert in certain cases, whom the parties are encouraged to choose jointly, or who may be appointed by the court. In addition, a single expert per subject matter will be allowed, hopefully reducing the number and variety of expert debates in the courtroom. Radio Canada has reported that the proposals of the Justice Minister have received a tepid response from some groups who feel that imposing the choice of a single expert on parties will create more debates than it seeks to solve.

With all these changes, perhaps expert shopping will progressively become a thing of the past. What do you think about the proposals of the Association des médecins psychiatres and the new codal provisions?

Comments are closed.