Canadian Lawyer

8 M a r c h 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m A n insurance fund and trans- action levy required by the Law Society of Newfoundland and Labrador has made headlines for the second year running. According to media reports, the fund is topping $10 million and continues to grow. To fund its insurance program, the law society requires all lawyers in pri- vate practice to pay a premium, which is allocated in two different ways. There is a standard base amount all lawyers are charged as well as a transaction levy on lawyers practising in high-risk areas, such as real estate and civil litigation. "Requiring that the additional premium be paid in this way helps to ensure that the cost of insurance for lawyers practis- ing in areas where fewer claims arise is lower than it is for lawyers practicing in higher-risk areas," says LSNL executive director Brenda Grimes. CBC News reported while the insur- ance fund continues to grow, premiums paid by lawyers themselves have dropped by more than 70 per cent, to $1,655 a year from $6,000 in 2005 — now putting them below the national average. Grimes told Canadian Lawyer in an e-mail the rate for the fund and the levy, established in 2005, is set each year by law society benchers. "[We] utilize the advice of an actuary in determining the projected expenses for the insurance program and the advice of investment advisers in deter- mining projected revenue from the invest- ments. Benchers then set the insurance premiums on the basis of the additional revenue required to cover those expenses for that year," notes Grimes. "For 2014," she adds, "Benchers maintained the base premium at the 2013 level and decreased the transac- tion levy to $35." Despite media scrutiny, the society "has rarely been contacted by lawyers or the- public" regarding the issue, says Grimes. It is likely most lawyers are passing the cost of the levy directly onto clients. That is certainly what was expected when the levy was first conceived. Benchers' Notes from a decade ago describing the pro- cess state: "Under a transaction fee levy system, a member will charge and col- lect the levy, then submit it two or three times a year on a schedule determined by the Law Society." Some of the money that has been col- lected is also being used by the society. According to media reports, $500,000 was moved into the society's general coffers in 2010 and 2011 for loss prevention. — DoNALee MouLtoN donalee@quantumcommunications.ca Brenda Grimes says actuaries and advisers help set rates each year. N.S. court clearS up coNfuSioN about expert evideNce N agging questions about expert evidence have been answered in a decision from the Supreme Court of Nova Scotia. Some of those answers will require lawyers to rethink their trial strategy — and who they use as expert witnesses. "Lawyers and clients should be aware that if they request an expert to attend for cross-examination at trial before the finish date the prohibition against direct expert testimony will be lifted and the expert will be permitted to give direct evidence. This requires a weighing of the strategic value of being able to cross- examine the expert versus the potentially negative consequences of a direct examination," says Charles Ford, a partner with McInnes Cooper in Halifax. The cross-examination question was one of four pretrial motions addressed by the court in Russell v. Goswell, a personal injury action arising from a motor vehicle accident. The primary impact of the 20-page decision is to clarify the portions of Civil Procedure Rule 55 dealing with the presentation of direct expert testimony at trial, which had previously been the subject of some debate, says Ford. "Much of the confusion was created by the fact that Rule 55 was amended shortly after it was enacted in January 2009." The court decision also speaks to the issue of a "physician's narrative" as contained in the rule. In this case, Justice Patrick Duncan determined, RegioNAl wRAp-up AtlAntic Nfld. lawyers well iNsured

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