Communicating With Experts

As evidenced by the recent case of Moore v. Getahun, the scope of permissible interactions between counsel and expert witnesses is a recurring issue that arises from time to time when experts are called to testify at trial. The Advocates' Society has recently developed and approved a set of "best practices" that litigators should consider following in their interactions with experts. I will briefly summarize them, though a full review of the principles and the position paper underpinning them may be found here.

Given a duty to present reliable, clear, comprehensible and relevant expert evidence, an advocate can (and should in many cases) have an appropriate degree of consultation with testifying experts, including appropriate input into the format and content of an expert's report or affidavit before it is finalized and delivered. What is to be avoided is any communication likely to interfere with the expert's duties of independence and objectivity, which would result