Canadian Lawyer InHouse

27 CANADIANLAWYERMAG.COM/INHOUSE MAY 2017 Canada," says Reinertson, who specializes in class action defence in product liability and competition litigation. One important part of the search for the best expert includes not only looking into their expertise but their track record in court. "I always do research to see if their credibility has been called into question," says McLeese. "If you think the cross-ex- amination could reveal a bias or an agenda, it is safer to fi nd someone else," he says. If an expert has testifi ed a number of times previously and usually for the same side in litigation, that could also raise a red fl ag, says Jeffrey Feiner, a partner at Cor- man Feiner LLP in Toronto. "It is better for an expert to have acted for both sides [plain- tiff and defendant] on occasions, for their own credibility. Otherwise, your shelf life as an expert could be shortened," says Feiner. Once an expert has been retained, there is a signifi cant amount of homework for the lawyer to do before any trial — not just on the relevant legal issues but also the techni- cal ones that will be presented to the court. "Lawyers have to skill up pretty quickly," says Goudge. A strong understanding of the expert evidence is necessary to assist in ensuring that this testimony is in terms that will be understood by the court. "Experts talk their own language, as do lawyers. Mak- ing it comprehensible to a lay listener is part of the lawyer's responsibility," says Goudge. At the same time, a witness who appears too expert at testifying could potentially backfi re, suggests McLeese. "I tend to err on the side of expertise versus presentation. By the time you get to trial, the expert, in preparing the report, is already part of the way there on presentation," says McLeese. Along with putting forth your client's expert opinion in the most effective light, knowledge of the technical issues is es- sential to cross-examining the other side's expert, says Reinertson. "Visual aids and graphic presentations can also be incredibly helpful" in trying to explain complex issues to a court, she says. At the same time, it is important for law- yers who have done signifi cant preparation for a civil trial to remember that a jury or even a judge is not going to have the same amount of knowledge on the subject. "The concern is, when you take a case to trial, you have been living with these facts for two or three years. The judge has not," says Feiner. While the Supreme Court in White Bur- gess stressed the importance of a judge's gatekeeper role in keeping out expert tes- timony that is biased, it added that the threshold for admissibility will normally be met if the witness swears under oath to being impartial. The party then seeking to exclude this evidence must show a "realistic concern" that the expert has a bias. In the certifi cation stage of class actions, the White Burgess decision has resulted in a very low threshold for admissibility, suggests Reinertson. "We are focusing our experts instead on looking for gaps in the plaintiff's evidence. We then explain why these gaps are fundamental problems," she says. In the two years since the decision was issued by the Supreme Court, there do not appear to be many cases where a judge actually excluded expert testimony altogether. One high-profi le exception was in the criminal sphere, in the trial of police offi cer James Forcillo in the fatal shooting of Sammy Yatim during a July 2013 confrontation on a Toronto streetcar. Superior Court Justice Edward Then would not permit a defence expert to testify that continued on 29 We are focusing our experts instead on looking for gaps in the plaintiff's evidence. We then explain why these gaps are fundamental problems. ROBIN REINERTSON Blake Cassels & Graydon LLP

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