Recent Evolution of Expert Evidence in Selected Common Law Jurisdictions Around the World

In the most recent issue of The Lawyers Weekly, Erik Arnold summarizes a study he wrote with Errol Soriano on trends and practices concerning the use of expert evidence in common law jurisdictions around the world.

The study, which was commissioned by the Canadian Institute of Chartered Business Valuators, looked at the situation in Canada, the United States, Britain, Australia, and in international arbitration.

As Arnold writes:

"In virtually every jurisdiction surveyed, adversarial bias was identified as the single most important problem with expert opinion evidence. Guarding against what we term 'advocacy by experts' has become a major focus for stakeholders."

"In response to these concerns, recent amendments to the rules of civil procedure in various jurisdictions have sought two common objectives — formally defining the expert’s duty to the court and placing limits on the allowable scope of the expert’s evidence. Reporting requirements in various jurisdictions now mandate, at a minimum, positive affirmation of the expert’s roles, responsibilities and, in particular, their duty to the court. The persistent concern regarding experts has also led to reduced autonomy regarding the content of their reports. "

"The cost of litigation was the next most cited problem with expert evidence, and it was a close second. The view that expert evidence is expensive is not new. Until recently, however, the dialogue amounted to resigned complaint and not actionable reform. This is beginning to change."

"Rules committees and other stakeholders are now focused on the possible substance and form of procedural reform, the objective being to reduce costs of opinion evidence while maintaining the tenets of the adversarial judicial system favored in each jurisdiction. As a result, innovative approaches to expert evidence are emerging."

The full text of the report is available on the site of the Canadian Institute of Chartered Business Valuators.