cross-examinagin expert witnesses in business litigation
TRANSCRIPT
CROSS-EXAMINING EXPERT WITNESSES
Igor Ellyn, QC, CS, FCIArb. Chartered Arbitrator, Mediator, Legal Counsel
Certified Specialist in Civil Litigation
Evelyn Perez YoussoufianBusiness Litigation and Arbitration Counsel
www.ellynlaw.com
© 2015 Igor Ellyn. May not be reproduced without written permission.
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Cross-examining expert witnesses – topics
• What to consider when cross-examining an expert witness• Setting realistic goals for the cross-examination• Preparing for cross-examination• Analysis of the expert’s report• Categories of attacks
• Challenging the expert’s qualifications• Challenging the expert’s independence• Challenging the expert’s facts and assumptions• Challenging the expert’s methodology• Challenging the expert’s conclusions
• Cross-examining on draft reports• Your expert should be present at trial• Concluding thoughts• Table of references • Table of cases
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What to consider when cross-examining an expert witness
1. Expert evidence should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
2. Expert witnesses should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise.
3. Expert witnesses should state the facts or assumptions upon which their opinion is based. Witnesses should not fail to consider material facts that could detract from their concluded opinion.
4. Expert witnesses should make it clear when a particular question or issue falls outside their expertise.
5. If an expert's opinion is not properly researched because the expert considers that insufficient data is available, then this must be stated with the indication that the opinion is no more than provisional.
6. If experts change their views on a material matter after reports are exchanged, then they should be communicated to the other side without delay.
7. Where expert evidence refers to the photographs, plans, calculations, analysis, measurement, survey or reports or similar documents, these must be provided to the other party at the time of the exchange of reports.
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Setting realistic goals for the cross-examination
• Checklist of cross-examination goals:• Minimizing the strengths of opposing expert’s report;• Capitalizing on the weaknesses in the opposing
expert’s report;• Securing admissions as to key elements of your
expert’s report, including:• The professional qualifications of your expert;• The appropriateness of the methodology or model
used by your expert;• The accuracy of some or all of your expert’s
conclusions; and• The accuracy of your expert’s calculation.
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Preparing for cross-examination #1
• Your expert should help you prepare for cross-examination of the opposing party’s expert. Preparation will differ if you are acting for the plaintiff or the defendant. The defendant’s expert report is already a critique of the plaintiff’s expert report.
• Ask your expert for assistance in formulating the questions to cast doubt on the opposing expert’s opinions on the five avenues of attack.
• Discuss with your expert where you are likely to score the most points with the opposing expert. Focus your cross-examination on your strongest points. You do not have to cross-examination on everything.
• The expert is not trial counsel. You have to develop the cross-examination questions but the expert should provide the ammunition. 5
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Preparing for cross-examination #2
• It cannot be overemphasized that the effectiveness of counsel’s cross-examination of the opposing expert is greatly affected by the strength of counsel’s own expert evidence.
• Limit cross-examination on qualifications, competence or independence to matters which will assist your main objective, namely, to persuade the judge that your expert’s opinion is the most authoritative and reliable one.
• It is unpersuasive to attempt to discredit the opposing expert on small points on independence or qualifications when the opposing expert is obviously qualified to give the expert evidence. It could do more harm than good. “Keep your powder dry” for attacks on methodology and conclusions.
• Remember the objective of your cross-examination is not to beat the opposing expert to a pulp. Limit your preparation to casting enough doubt about the opposing expert opinion that the Court prefers your expert opinion. The process is relative not absolute.
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Analysis of the expert’s report #1
Checklist for consultations with your expert:
1. Conduct independent research about the opposing expert to determine:
• Internet search including LinkedIn, website and other searches to identify inaccuracies or exaggeration in curriculum vitae;
• The position in his/her organization or “skeletons” which may make his/her opinion less credible;
• Experience in this aspect of litigation;• Other testimony by this expert – search legal databases – a
search may disclose an opposite position taken by the same expert on a matter of process or principle;
• Publications and articles – previous writings by the opposing expert may be used to challenge evidence. Matters of principle in writings by your expert of other authorities may also be put to the opposing expert;
• Other reports by opposing expert on similar topics;
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Analysis of the expert’s report #2
2. Analysis of all expert’s reports in the case including preliminary and draft reports, if available;
3. Discussion with the client and client’s personnel as to all inquiries and documents conducted by the expert and members of the expert’s staff;
4. Analysis and comparison of your expert’s report to the opposing report:
• Review of documents considered by both experts;• Comparison of assumptions and information from other;• Comparison methodology and models;• Comparison of calculations, where applicable;• Comparison of reasonableness tests, where applicable; and• Comparison of conclusions;
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Analysis of the expert’s report #3
5. Discussion with your expert as to: • The qualifications of the opposing expert;
• When assessing the qualifications of a proposed expert, trial judges regularly consider factors such as the proposed witness's professional qualifications, her actual experience, her participation or membership in professional associations, the nature and extent of her publications, her involvement in teaching, her involvement in courses or conferences in the field and her efforts to keep current with the literature in the field and whether or not the witness has previously been qualified to testify as an expert in the area. Dulong v Merrill Lynch Canada Inc., 2006 CanLII 9146 (ON SC) at para 21.
• The personal and professional strengths and weaknesses of the opposing expert;
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Analysis of the expert’s report #4
• Points of agreement with the opposing report and whether differences can be further narrowed;
• The accuracy and completeness of facts/data; • Identify any major scope limitations, restrictions
and qualifications rendered on the conclusions;• For example, according to the Practice Standards of
the CICBV for Expert Reports:The Expert Report shall contain a detailed scope of review that clearly identifies the specific information upon which the Expert relied to arrive at a conclusion. Where the conclusion is qualified by a scope limitation, the limitation shall be explained, setting out the reasons for the limitation and disclosure of the potential impact on the Expert’s conclusion.
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Analysis of the expert’s report #5
• The reasonableness of assumptions;• The reasonableness of the methodology and models;• The reasonableness of the tests; • The reasonableness of the conclusions; • Factors to support bias on the part of opposing
expert;• Strengths of the opposing report which encourage
your expert to rethink positions in his/her report and • Cross-examination suggestions;
6. Review of transcript of discoveries; and
7. Review of transcripts in other cases, (i.e. appeals, daily evidence).
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Analysis of the expert’s report #6
• How much preparation is undertaken will depend on the facts of the case and the amount involved.
• Once the preparation has been completed, counsel will have identified areas of agreement between the experts and eliminated those issues by serving a Request to Admit, working out a Statement of Agreed Facts or making submissions at trial as to matters which have been resolved.
• Rule 53.03 of the Rules of Civil Procedure requires that a party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference, serve the expert report containing the following information:• The expert’s name, address and area of expertise.• The expert’s qualifications and employment and educational experiences
in his or her area of expertise.• The instructions provided to the expert in relation to the proceeding.• The nature of the opinion being sought and each issue in the proceeding
to which the opinion relates.
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Categories of attacks
1. Qualifications and specific expertise;
2. Independence – bias or partisanship of the expert;
3. Facts and assumptions upon which the opinion is based;
4. Methodology; and
5. Conclusions.
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Challenging the expert’s qualifications #1
• An important aspect of the cross-examination is a challenge of the expert’s qualifications. This aspect has two branches:
1. Preliminary Challenge of the Expert’s Qualifications• When the proposed expert witness is called to testify, the first order
of business is to satisfy the trial judge that the witness is an expert in her/his filed and competent to give opinion evidence. The opportunity to cross-examine arises immediately after opposing counsel offers this witness as an expert.
2. Challenging the Weight of the Opinion• Even if the witness is qualified by the trial judge as an expert in,
say, accounting, he/she may still be cross-examined about his/her qualifications and experience in the particular aspect of accounting at issue in the case.
• It is common for counsel to cross-examine about the scope of practice and departmental seniority of the expert in comparison with counsel’s own evidence.
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Challenging the expert’s qualifications #2
• When cross-examining on qualifications, highlight the strengths of your expert’s credentials.
• Counsel should consider cross-examination on some of the following aspects of an expert’s qualifications which may weaken the weight of the expert’s opinion:• Difference between the professional qualifications set out in
the expert report and those adduced in evidence;• Professional achievements;• Training and education and special certifications;• Professional skills;• Area and scope of the expert’s practice and expertise;• Skills required to provide the opinions in the case;• Previous experience with subject-matter or in industry;
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Challenging the expert’s qualifications #3
• Personal connection with the evidence in the case:• Who collected the data?• Who made the assumptions?• Who chose the method or model?• Who prepared the draft reports?• Who prepared the report?• Who researched Statistics Canada, Bank of Canada,
etc.?;• Expert’s position in the hierarchy of their organization; • Articles and publications of witness and own expert.
Emphasize a publication by the opposing expert in which s/he supported your expert’s methodology in a similar case;
• Comparison with qualifications of own expert; and
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Challenging the expert’s qualifications #4
• Familiarity with publications in the field. Seek admissions that the opposing expert considers your expert’s publications authoritative:• Ask the expert if s/he is familiar with recent case law
affecting their area of expertise.• If the expert has not heard of a case which is directly
relevant, this may be shake the expert’s reliability, especially if the case directly on point.
• Court decisions are easily available online. Bloggers report relevant cases upon their release. Key cases are even brought to the attention of financial expert’s by their professional bodies.
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Challenging the expert’s independence #1
• You have two opportunities to cross-examine the opposing expert. Focus your cross-examination for each occasion.
• Decide early whether your objective on the voir dire is to render the opposing expert’s evidence inadmissible or just to make him/her sound less authoritative than your expert.
• The expert’s independence should be raised at the voir dire. However, the trial judge will not usually decide the independence issue then:
When a challenge to expert evidence is based on the expert witness having a connection to a party or an issue in the case or a possible predetermined position on the case, the essence of the challenge is that the evidence is not reliable because the expert has tailored his evidence to suit the position of the particular party or the expert’s personal views. This kind of reliability is not an admissibility issue.
Gallant v Brake-Patten, 2012 NLCA 23 at paras 86-93; Henderson v Risi, 2012 ONSC 3459 at para 14.
• Questions to ask: Are there prior connections between the opposing party and the opposing expert? Are the experts employees of the opposing party? Is the expert related to either the opposing party or opposing counsel?
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Challenging the expert’s independence #2
• On the other hand, there are cases where the trial judge will refuse to qualify the expert on the grounds of lack of independence. In Deemar v College of Veterinarians of Ontario, 2008 ONCA 600, the expert for the doctor was a former CVO administrator, who was terminated and sued CVO for wrongful dismissal. ONCA held at para 21:
It is up to the trier of fact to qualify a proposed expert witness. The party tendering the proposed expert witness must satisfy the trier that he or she possesses not only the necessary expertise, but the requisite independence as well. For example, the trier may refuse to qualify a person of unquestioned expertise who is closely related to the tendering party.
• The CVO Discipline Committee found the expert “strayed from the function of an expert” and had taken on “the role of advocate and possibly the role of the trier of fact.”
• The Committee refused to qualify the expert because when the person rendering the evidence assumes the role of advocate, s/he “can no longer be viewed as an expert in the legally correct sense”.
• The ONCA agreed with the conclusion as a proper basis for not admitting the expert.
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Challenging the expert’s facts and assumptions #1
• How counsel conducts cross-examinations depends upon the facts of the case.
• Essentially the cross-examination is a selective analysis of the best and most vulnerable aspects of the opposing expert and the summary of the evidence in his/her report.
• Counsel should ensure that she/he or a member of his law firm interviews the witnesses of fact. It is not enough to rely on the expert’s interview of the witnesses.
• Review the opposing expert’s assumptions. If they have not been proven by fact witnesses, this could be fertile ground for invalidating the conclusions.
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Challenging the expert’s facts and assumptions #2
• Check to see if the witnesses’ and documentary evidence are available to prove, by reliable, admissible evidence, the facts and assumptions upon which the expert’s report is based.
• If the facts and assumptions are inaccurate or unreliable, the conclusions drawn from them may be equally inadmissible.
• Secure admissions that if certain assumptions are proved differently, your expert’s conclusions are correct. Be sure to propose assumptions which your witnesses have proved or which will be proved by later evidence. 21
Challenging the expert’s facts and assumptions #3
• The following is a guide to topics that ought to be considered in cross-examination in respect of facts and assumptions which differ from those made by your expert:• Question sources and reliability of data and information;• Object to reliance upon facts not adduced in evidence;• Question admissibility of evidence relied upon in the report;• Test relevance of facts relied upon;• Question about the impact of factors not relied upon by experts; • Test the accuracy of facts and assumptions;• Test the accuracy of information obtained from third parties;• Question the impact of changes in facts or assumptions from
report until trial; and• Impeach credibility for bias for the client’s position.
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Challenging the expert’s methodology #1
• The discussion counsel conducts with his/her expert should include a discussion about the methodology or model upon which your expert’s opinion is based, including the lines of attack the other side is likely to level at it.
• Counsel must educate him/herself about the principles involved in selecting a method or model and test its reasonableness by asking questions of his/her expert.
• Ask your expert what model, analysis, investigation and conclusions he/she would employ if retained by the other side.
• Just because a business valuator has used a particular methodology does not mean that it is correct, particularly if the opposing expert has used a different methodology. A starting point for challenging an expert’s methodology is to determine whether there is a published authority who has written or approved the method.
• If the methodology of the experts differ, understand the differences. “Slice and dice” the methodology to identify as many points of agreement as possible. Then, with your expert’s assistance, attack the reasonableness of the points of disagreement.
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Challenging the expert’s methodology #2
• Research to find reported cases approving your expert’s methodology. For example:• In the valuation of a business which owns real estate assets, one of the
value considerations is the cost of disposition of the real estate. The valuator must calculate the disposition costs and the tax implications of the sale, including an accounting item known as “the trapped in capital gains”. Because the disposition date is unknown, valuators will typically take a 50% present value of all the relevant items and deduct them from the value attributed to the real estate by a real estate appraiser.
• In Zeller v The Queen, 2008 TCC 426, the Tax Court considered how a calculation of trapped in capital gains should be made on the basis of a particular case. If the opposing valuator used a different methodology and arrived at a different conclusion, that is ripe fodder for cross-examination. Business valuators must keep current of court decisions which affect their areas of expertise. If an expert prepares a report which does not follow the methodology preferred by a court on the same or similar circumstance, it is legitimate to question the expert about it.
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Challenging the expert’s methodology #3
• Another example of the use of court decisions in cross-examination on methodology relates to capitalization rates. • A critical aspect of the valuation of the shares of a private corporation is to
determine an appropriate capitalization rate. The capitalization rate is applied to the maintainable earnings of the business to determine value. Applying the correct capitalization rate or earnings multiple is a much trickier proposition. Valuators rely on literature such as the Ibbotson SBBI Valuation Yearbook,
which determines cap rates for public company transactions of different sizes and complexity.
• The data is broken down in about 15 categories called deciles. The public company data must then be weighted and adjusted in a commercially reasonable manner to apply to the subject private company.
• If the wrong size premium is selected, the value will be very significantly larger or smaller.
• In Pilch v TemboSocial Inc., 2014 ONSC 5590, the Ontario Superior Court analyzed how which capitalization rate should be selected in the particular circumstances of a relatively small business and how the selection of the preferred decile impacted on value. If a valuator in your case used a method which is consistent with the court’s determination on similar facts, this could assist in a successful challenge of the opposing expert’s opinion.
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Challenging the expert’s conclusions #1
• A successful attack on the building blocks of the expert’s opinion may cast doubt on the conclusions.
• It is also appropriate to make a direct attack on the expert’s conclusions.
• In this aspect of the cross-examination, counsel’s task is to cast doubt on the conclusions, and on the reasonableness or application of the assumptions and facts relied upon by the opposing expert to reach his/her conclusions.
• Counsel’s objective is to persuade the court that, where there is disagreement, the opinion of counsel’s own expert’s view is preferable.
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Challenging the expert’s conclusions #2
• The attack on the opposing expert’s conclusions may be focused on many aspects, many of which depend upon the facts and nature of the case, including the following:• The expert’s evidence relies upon faulty methodology or model, or
accounting methods;• The expert’s evidence fails to consider another method or model, such
as the one used by counsel’s own expert; • Where the expert deals with numbers, the expert’s evidence contains
inaccurate calculations of damages or losses in that:• the calculation has an arithmetic error; • the figures have been copied incorrectly from the source document, such
an invoice or financial statement; • amounts are missing or have been erroneously excluded;• amounts are grouped together erroneously; • the calculation used is inconsistent with an agreement between the parties
or another document in the action;• the methodology used to arrive at a calculation is faulty; or• an incorrect multiple has been selected.
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Challenging the expert’s conclusions #3
• Tests in the expert’s evidence do not support model or conclusions;
• The expert’s evidence fails to conduct appropriate tests of reasonableness, or the tests are not conducted properly;
• The expert’s evidence omits relevant factors or erroneously includes irrelevant ones;
• The expert’s evidence contains errors in applying the model to facts;
• The expert has made contradictory statements in publications;
• The expert makes contradictory statements between report and viva voce evidence, or between the draft preliminary or final report; and
• The expert’s evidence agrees with own expert’s evidence.28
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Cross-examining on draft reports #1
• How the opposing expert’s report reaches final form is a subject for cross-examination and worrisome problem.
• If the client retains the expert, all of the expert’s work product must be produced because litigation privilege does not apply. Typically, the lawyer hires the expert and the client agrees to pay the expert directly. Care should be taken that emails about draft opinions are sent only to counsel.
• Latest case on draft reports is Moore v Getahun, 2015 ONCA 55. The Court held that where an expert is testifying, litigation privilege extends to the draft reports, notes and records prepared by an expert during the course of preparing his or her opinion and therefore these items need not be disclosed or produced to the opposing party. However, since litigation privilege is not absolute, this rule is subject to two caveats:
1. The findings, opinions and conclusions, including "foundational information," must still be produced in accordance with the Rules; and
2. Litigation privilege cannot be used to shield improper conduct. Thus, where a party can show reasonable grounds that communication by counsel with the expert interfered with the expert's duties, the court can order disclosure.
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Cross-examining on draft reports #2
• In light of this, both counsel and the expert should be careful about the contents of a draft report.
• Draft reports should be listed in Section C of the Affidavit of Documents.
• A draft report can be used to cross-examine the expert on inconsistencies. The probative value of the report may be weakened by any substantial change in theory or conclusions from one draft to another or the final report.
• In the days before colour photocopies, one firm was concerned about being embarrassed by a draft report that they printed drafts on burgundy paper. When one photocopied burgundy paper, the result is an illegible black page.
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Your expert should be present at trial
• Your expert should be present at trial to assist with issues that come up during the opposing expert’s examination in chief.
• When the opposing expert witness is testifying, ensure that your expert is present to hear all the evidence.
• Even if the trial judge has made an order excluding witnesses, the order will not include experts.
• Your expert may detect weaknesses in the opposing expert’s evidence that will be helpful in your cross-examination.
• When cross-examining the opposing expert, look to your expert for guidance and be sure to have him/her sit near you at the counsel table so they can pass notes quickly.
• After examination-in-chief of the opposing expert, it is useful to have an opportunity to compare notes with your expert. 31
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Concluding thoughts
• Cross-examination of the opposing experts is a multi-dimensional event which involves lengthy planning, intimate appreciation of the facts and assumptions in the case, meticulous attention to details and extensive consultations with your own expert and other witnesses.
• All of these elements, combined with favourable facts and a generous dose of good luck, increases the change that the trial judge will prefer your expert’s opinion over that of the opposing expert.
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Table of references
• E. Arnold & E. Soriano, The Recent Evolution of Expert Evidence in Selected Common Law Jurisdictions Around the World, http://goo.gl/blTli
• D. Debenham, The Forensic Accountant’s Guide to the Law of Privilege: What To Do When a Fraudster Claims Privilege, http://goo.gl/0rMRx
• J. Dunitz, Daubert in the Realm of Financial Damages Experts, 2011 Insights 36, http://goo.gl/ZC6JZ
• T. Dunkelberger & C. Arthur, Best Practices in Finding and Qualifying Expert Witnesses, http://goo.gl/cLCFO
• A. Dwyer, New Study Examines Daubert Challenges to Financial Experts, http://goo.gl/Bij34• I. Ellyn and v Pileggi, Cross-examining the Forensic Accountant, http://goo.gl/2eUAo• D. Goodman, Choosing the Financial Expert Witness, http://goo.gl/ZDVTO• J. Gray, Why judges like hot-tubbing, Globe & Mail, http://goo.gl/6PVPa• B.J. Holliday, Court Rules Amendments related to Concurrent Expert Evidence and “Hot-
tubbing” of Experts, http://goo.gl/xsjgl• M. Knight, "Hot-Tubbing' - A Useful Method of Obtaining Expert Evidence" [2006]
AUConstrLawNlr 81; (2006) http://goo.gl/gGZbi• J. Melnitizer, Experts to share hot tub at Ontario Energy Board, National Post,
http://goo.gl/xgiYl • PricewaterhouseCoopers, Daubert Challenges to Financial Experts: An 11-year study of trends
and outcomes, 2011 http://goo.gl/9p4MZ• C.E. Hinkson, QC, Cross-examining the expert witness, http://goo.gl/cdPC3Q• J. Hunter, Ontario Court of Appeal ruling on expert witnesses 'provides much needed clarity‘,
http://goo.gl/MsDcLc.• Ibbotson SBBI Valuation Yearbook: Morningstar publisher, http://tinyurl.com/27ch7lc.
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Table of cases
• 820823 Ontario Ltd. v Kagan, 2003 CanLII 24295 (ON SC).• Alfano v Piersanti, 2012 ONCA 297.• Apotex Inc. v Astrazeneca Canada Inc., 2012 FC 559.• Ault v Canada (A-G), 2007 CanLII 55358 (ON SC).• Conceicao Farms Inc. v Zeneca Corp., 2006 CanLII 25345 (ON CA).• Continental v J.J.’s Hospitality, 2012 ONSC 1751.• Cowles v Balac, (2006) 83 OR (3d) 660 (CA).• Daubert v Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993).• Deemar v College of Veterinarians of Ontario, 2008 ONCA 600.• Gallant v Brake-Patten, 2012 NLCA 23.• General Electric Co. v Joiner (1997), 78 F 3d 524.• Henderson v Risi, 2012 ONSC 3459.• Kumho Tire Co. v Carmichael (1999), 131 F 3d 1433.• Pilch v TemboSocial Inc., 2014 ONSC 5590.• Prosperine v Ottawa-Carleton et al. (2002), 37 CBR(4th)135 aff ’d (2003), 8
CBR(5th) 26.• R v Abbey, 2009 ONCA 624.• R v Bryan, 2003 CanLII 24337 (ON CA).• R v Burns, 1994 CanLII 127 (SCC).• R v D.D., 2000 SCC 43. • R v J-LJ, 2000 SCC 51.• R v Marquard, 1993 CanLII 37 (SCC).• R v Mohan, 1994 CanLII 80 (SCC).• Zeller v The Queen, 2008 TCC 426.
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