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LEGAL REPORT: INTELLECTUAL PROPERTY proposals for expert pretrial conferenc- ing and hot tubbing have been over- whelmingly panned. "I haven't encoun- tered anybody who thought these were a good thing," he says. "Which is rare, to get that kind of consensus among a body of lawyers that represent all differ- ent areas of IP." Andy Radhakant, of Heenan Blaikie LLP, admits the Federal Court is on to something in terms of expert evidence spiraling out of control. It's clear, he says, that witnesses must be pulled back to a more neutral position. But he too fears the proposed rules run counter to that goal. "Situations in which experts are permitted, or in fact required, to confer together or to question each other naturally lead to situations which favour experts who are loud, aggres- sive, partisan, and maybe even a bully," says Radhakant. He even suggests par- ties may go out of their way to find experts with assertive personalities and a penchant for spirited advocacy. "That is worrisome against the backdrop of the stated goal of the court, which is a worthwhile goal." Radhakant also has a more basic concern with the proposals to change how expert evidence is handled at the Federal Court. Never before have experts had the opportunity to chal- lenge one another, and have previously been restricted to answering questions from lawyers through examination and cross-examination. At the same time, Canada's justice Left to Right: Etienne de Villiers, Bruce Stratton, Jenna Wilson, Alan Macek, Ron Dimock, Jennifer Ko, Vincent Man All you need in IT patent litigation Experience. Results. The it patent litigation team at Dimock Stratton delivers on both counts. Take a look at some examples from our recent work: asserting three patents for the leading Canadian manufacturer of wireless handheld devices; representing three of Canada's top banks in an it patent impeachment proceeding; defending two major network equipment manufacturers in a patent infringement action. When you or your clients need results, rely on the experienced it patent team at Dimock Stratton. system has been applauded for the clear separation between the role of the judge as neutral decision-maker and counsel as advocates for their clients. Lawyers are worried that by ordering expert hot tubbing against the will of one or both parties, judges may blur that line. Especially, says Radhakant, if the judge is permitted to pose questions to the panel members. "This could have serious effects on the well-deserved good reputation that our justice system has," he says. What happens, wonders Radhakant, if a judge asks a question that a lawyer would have objected to if posed by opposing counsel? "Is the judge going to have to rule on the pro- priety of her own question?" Ogilvy Renault LLP partner Judith Dimock Stratton llp experience. results. 20 Queen W. 32nd fl, Toronto | 416.971.7202 | dimock.com 44 J A NU A R Y 2010 www. C ANADIAN Law ye rmag.com ntitled-3 1 8/10/09 9:56:10 AM Robinson also laments the hot tubbing proposal's departure from custom. "In our legal tradition, the order of legal presentation and how the case goes in at trial is part-and-parcel, I think, of a party's rights in terms of controlling to a large extent the manner they want the story to go in," she says. Robinson is optimistic, however, that judges will refrain from forcing expert panels on unwilling parties — even though the proposed rules make way for exactly that. What seems to concern Radhakant most is what the proposed rules could mean for patent cases, which he describes as a "finely choreographed dance." The introduction of pre-trial expert