Canadian Lawyer

doing something increases based on the number of people already doing it. If you go into a scene with 30 people talking about how the crane fell over because it was over- loaded, you're now going to feel awkward or intimidated for thinking it was some- thing else that caused it to fall over, Okrutny. "In the best-case scenario, you waste some time by focussing too much on that idea, but in the worst case, you com- pletely miss other evidence because you assumed everyone else was correct." 3. Confirmation bias: "People will try to rationalize their actions in any aspect of life. You tend to confirm your initial instinct by looking for information that confirms it," says Okrutny. "You end up subconsciously favouring data that fits your hypothesis, so that it's easy to recall the 20 pieces of evidence that fit, versus the 100 that didn't." 4. Noble-cause bias: "This happens when people are trying to do something for the greater good. They want to help, " says says Okrutny. He recalls one case where a lawyer who had hired him sent pic- tures of an injured party. "I didn't need to see them, but I instantly felt a rush of emotion. Maybe I was able to move on because I was aware of different biases that can act on me. " Addario says it's easy for lawyers to inadvertently influence an expert's analy- " sis and open the door to an appearance of bias by posing hypotheticals or offering their own theories of cases. "I try to hold off where possible so that if asked, my expert can say: 'I wasn't told what I was looking for when I got hired, specialty services at Construction Control Inc., says he has been retained as an expert in construction cases where he has been given no information about suspected defects. "The cost for the forensics work is much greater because you do a very thor- ough analysis of a whole bunch of things," he says. "And the hazard for all parties is that you'll get this wonderfully unbiased report, with no content on the issue you actually wanted to know about." He says a simple way to avoid the appearance of bias is to keep reports as quantitative as possible. "If I can get actual numbers that I have measured, those are much easier to Rick Derbecker, the vice president of '" he says. ntitled-1 1 defend than a pure opinion based on years of experience. Milburn plies his trade, an abundance of numbers makes quantification easy. But he says he has to be wary about his sources in order to avoid any appearance of bias. "You need to make sure the data and evidence you're relying on when you produce a report is as authoritative as pos- In the business valuation field where " sible. There's different weight that will go to certain evidence," he says. "Sometimes you'll be working with financial projec- tions from your own client, and it can be tricky. Of course they think the business was going to make $10 million a year from now until forever, but what are the assumptions they've made and how rea- sonable were they? You've got to do the due diligence on the data you get." Western Symposium on Search and Seizure Law in Canada Wednesday, January 23, 2013; Optional Workshop: January 24, 2013 The Banff Centre, 107 Tunnel Mountain Drive Banff, Alberta Join a faculty of leading experts for incisive analysis and lively discussion of current, critical issues, including: Charter Chairs: Scott C. Hutchison, Scott K. Fenton, M. Joyce Dewitt-Van Oosten, Q.C. Registration Fee: Course only: $495 plus GST Course plus workshop: $645 plus GST On site Group Discount: Register 4 members of the same organization at the same time, and receive 25% off each registration fee! Special room rate at The Banff Centre, starting at $107 per night. Please quote code "RCM 1301". To Register: Or Call: Or E-mail: Osgoode Professional Development, 1 Dundas Street West, Suite 2600, Toronto Priority Service Code: 12-52CA www.CANADIAN Lawyermag.com N O VEMBER / D ECEMBER 2012 41 12-10-23 9:02 AM

• Cover