Necessity and Costs of Expert Witnesses
In many personal injury cases, the injured party may not have the extensive upfront funds needed to be properly represented in a court of law against an insurance company. Cases may vary but court and facilitation costs can be very high and taxing on individuals, especially on top of other expenses they may be paying out of pocket, such as medical bills.
Lawyers in personal injury cases routinely find themselves forced to spend tens or hundreds of thousands of dollars funding a case. Most accident victims are unable to fund these cases in the traditional manner. As a result, most reputable lawyers will charge a contingency fee which means they will bill a percentage of the damage settlement or award. In Ontario, the defendant usually pays a portion of that fee. Note that ranges of fees do vary and this is a question you should pose to any lawyer who may be asking to take on your case.
There are many costs associated with a personal injury claim. Just a few examples are acquisition of police records, medical records, private investigators, expert witnesses (who sometimes need to be flown in) and court filing fees. For every person contributing to the case through testimony, there will most likely be a deposition cost charged per person.
Big contributors to expenses are the disbursements for expert witnesses. Depending on the case, you may need more than one expert; a medical expert to attest to your injuries, an accountant to forecast lost wages and even an accident reconstructionist to accurately recreate the circumstances surrounding your accident.
The pricing structure and charges of these experts is something that has come into question by several trial judges not too long ago. Justice Mark Edwards reviewed this issue in Hamfler v. 1682787 Ontario Inc where damages were awarded by the jury to the plaintiff in the tune of roughly two hundred thousand with disbursements amounting to almost one hundred thousand. Justice Edwards found that the disbursement fees (what was being charged by the expert witnesses) were grossly excessive. He believed that in general, much time was spent scrutinizing the propriety of legal fees charged and not nearly enough directed at disbursement fees for expert witnesses. He sought to find whether or not the amounts claimed were reasonable and fair in this case.
An expert economist who provided services for the trial had the amount decreased because his contribution was found to be of little use to the jury. Justice Edwards also found that another expert's testimony would be redundant next to that of his colleague's who served before him, so it was disallowed as evidence. In totality, he saw that experts should go more in depth with their charges, providing clear breakdowns of hourly rates charged to the rates approved and suggested by their governing body as professionals. He also saw that in the case of the repetitive expert, the defence should not have to pay charges, which means that the costs/disbursements are charged to the losing party. He believed that experts should not be able to charge any amount they deemed justifiable and expect that the court would accept it without question.
There are key factors to be addressed when reviewing proportionality in costs impartially including:
- Relevancy of the experts' contribution
- Duplication by other experts
- Level of redundancy in the report
This can pose a challenge to both sides. The plaintiff's lawyer has no control over what an expert charges and with the newer motions to have better documentation and breakdowns of the charges, these same experts should not in turn be criticized for the amount of time they spend doing so. Some experts, like physicians, don't even have detailed invoicing.
A suggestion by Justice Edwards was to measure the costs for the trial against appointments that were cancelled, using it as a yard stick for what should be charged. The challenge here is to do so without incurring any additional costs that would be generated through actual, timely documentation.
There is also a cost to insurance companies. If they decide to challenge what they deem as excessive disbursements, the cost to do so can be as additionally taxing when compared to just paying the fee. Plus there is the chance of losing the appeal in which they would have to bear that additional cost as well. Managing the experts' cost on either side proves to be a double edged sword, more so for the plaintiff because they would be responsible to pay whatever isn't covered if the defendant is given a favorable judgement. And let's face it; most plaintiffs' pockets are not nearly as deep at that of the Insurance Companies.
Can Hired Expert Witnesses Be Impartial?
Experts are supposed to be non-biased giving their professional and experienced opinion based on fact. Some people may believe this impossible since an expert is hired, paid and represents either the plaintiff or defence, but what usually happens is that experts within an organization bounce cases off each other in order to strengthen their hypotheses, so that validity can be verified and not challenged successfully by other experts.
Of course, there have been cases where the experts' priorities and expertise have been questioned when a case is brought to trial. Take for example a case where a gentleman suffered a slip and fall on a tiled floor. Both sides represented in the trial had their own expert witnesses who both agreed that the tiles had more than acceptable slip resistance.
The plaintiff's expert concluded that there must have been some other contaminant present on the floor at the time but completely left out specific, pertinent information in his report; that the victim was intoxicated at the time. He went on further to conclude that the type of injuries that the gentleman suffered was not related in any way to his drunken state. The jury found no validity in this conclusion and ordered the plaintiff to pay all costs and found judgement for the defendant.
Contact Gluckstein Lawyers
An expert witness may be necessary for providing a strong foundation for your case. At Gluckstein Lawyers, we understand the costs incurred throughout the legal process, and do our best to keep them at a minimum without jeopardizing the quality of service that we offer you.
Call us today for a free initial consultation, and get one of our experienced personal injury lawyers in Ontario on your side.
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