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LEGAL REPORT: LITIGATION examination that needs to be done to bring the same issues to the forefront. "I think that many of the comments are one-offs based on a particular set of cir- cumstances, and the expert comes back and has refined their testimony or their approach to a case to take into account prior criticisms, and the judges do accept them," says Harper. Harper's paper points to the 2008 B.C. Supreme Court decision Abma v. Paul, which involved two motor vehicle acci- dents. According to the judgment, the psychiatrist expert in this case met with the plaintiff for an hour the first time and subsequently accepted "this is an inad- equate initial consultation and he admits that he did not meet the standard for psychiatric consultation reports in British Columbia." The judge also noted the expert "made his diagnosis before having an opportunity to fully understand the plaintiff 's medical and psychiatric his- tory, or to review the medical records." In all circumstances, the judge wrote she was unable to rely on the doctor's opin- ions in that case. In a subsequent 2009 B.C. Supreme Court judgment, Towson v. Bergman, also involving motor vehicle accidents, the judge preferred the evi- dence of the aforementioned psychiatry expert, citing the fact he had seen the plaintiff 13 times over almost four years and "has almost four times as many years of experience" as the defence expert. Ultimately, each judge deals with each case on its individual merit, but Harper says in a number of cases she examined, the judge didn't know about the prior adverse comment. As a result, she says it is up to counsel to bring the prior nega- tive comments forward. "It's very much a situation where it's up to counsel to do the counsel work, because one judge may make a comment in another case but again, the important principle is that that's not evidence in another case," she says. Trevor Farrow, a professor at Osgoode Hall Law School, agrees that ultimately, the first level of responsibility goes to the experts and the lawyers. "There are experts who've testified more than once in court, they're career experts, particularly in the U.S., but we have them in Canada as well — people who are seen as good experts in court for various reasons. To the extent that judges comment on those experts, good lawyering would suggest that that previous commentary would come forward, but if a lawyer doesn't bring it forward, a judge is not typical- ly going to go back and do their own research on that." Justice Alan MacInnes of the Manitoba Court of Appeal and president of the Canadian Superior Courts Judges Association says if someone is offered as an expert witness in a subsequent trial, both the expert and their evidence first have to go through the qualification process. However, previous comments of other courts will only be brought to the atten- tion of the judge if the lawyers involved are aware of the comments. "It's a case-by- case decision. And generally speaking, I would say 99 times out of 100, if there are negative considerations, it's going to have to be by reason of counsel having done Electronic Documents Records Management, e-Discovery and Trial Effectively navigate the legal challenges posed by electronic documents Electronic data is modifying how lawyers interact, changing how information is collected and used, and transforming the courtrooms. This in-depth resource examines and analyzes the issues relating to electronic documents, including: • the sources and types of electronic documents • records management policies • the legal framework governing e-discovery in Canada • the preservation, collection, processing, review and production of electronic documents ORDER your copy today Looseleaf & binder • $210 Releases invoiced separately (1/yr) P/C 0283030000 • ISSN 1920-1737 • the use of electronic evidence at trial This dynamic and burgeoning aspect of legal practice is clarified and explained with extensive reference to relevant Canadian and U.S. authorities. For a 30-day, no-risk evaluation call: 1.800.565.6967 CL0410 44 ApRil 2010 www. C ANADiAN law ye rmag.com FINLAY_Electronic Documents (CL 1-2h).indd 1 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. 3/17/10 11:13:26 AM Editors: Bryan Finlay Q.C., Marie- W ith contributions from: Caroline Abela, Steve Doak, Paul D. Guy, Nikiforos Iatrou, Stephanie L. Turnham, David Vitale and John Wilkinson Andrée Vermette and Michael Statham