A few weeks ago I posted a blog about the Unrepresented – those who can’t afford a lawyer and don’t qualify for legal aid. A few days ago I noticed an article in the Star about an initiative called justicenet that seeks to address this very problem. Through the efforts of Heidi Mottahedin, an internet-based service has been launched that connects people in need with socially conscious lawyers who are willing to work at a reduced rate.
I think that journalist Carol Goar is absolutely right when she suggests that this effort will be insufficient to deal with the enormous structural problem facing our legal system; however, Heidi Mottahedin deserves high praise for her efforts, as do the lawyers who are sacrificing income to be a part of justicenet.
Meanwhile, Legal Aid Ontario is planning to open a Family Law Services Centre in North York. No doubt this will be similar to the Family Law Information Centre at the London Superior Court, where those in need can get information about the law, shelters, counseling and mediation services in the area etc..
Family Law is an area where the lack of affordable legal help is particularly acute, and although the legal assistance provided at these service centres is limited, it is quite helpful nonetheless. A brief consultation will ensure that matters that don’t belong in court are redirected while matters that do belong in court are refined to exclude extraneous issues. The result is a more streamlined court system. At a lecture at Western Law a few weeks ago, Justice Harper expressed his desire for every court to have a Family Law Information Centre. He left me with the impression that he is working behind the scenes to try to make it happen.
Apparently there are people in the legal community doing the hard work to bring about change. If enough people step up to the plate, who knows? Maybe the problem of the unrepresented can be wrestled to the ground without resorting to harsher measures.
Only a few days ago, a flurry of mainstream press coverage talked about how an unchecked, unchallenged psychologist was able to proffer “expert” opinions in the family law context. One judge preferred the testimony of this unqualified expert over that of a truly qualified expert. And in how many cases did this unqualified expert tip the balance in (quasi)judicial decisions? Don’t experts have to qualified by judges before they can proffer expert testimony? Don’t lawyers have a duty to check (and challenge whenever appropriate) the qualifications of opposing experts? How did it come to pass that no lawyers saw fit to make a quick call to the CPO – or a quick on-line check – to ensurer Carter was authorized by the CPO to proffer such “expert” opinion? If bogus experts are able to dupe lawyers and triers of fact so easily – what hope is there for unrepresented litigants in the family law context (or any other context). Today the OPA is having its annual conference and from 2:00 till 5:00PM the topic will be expert witnesses with Justice Goudge in attendance. What better place to ask these question than at an Ontario Psychological Association conference session on this very topic?
That’s a truly heart-breaking story. For those who want to know more, go to http://bit.ly/9yf70W … and Family Law lawyers take heed – if you don’t recognize the name of the expert who issued a report, do some research to verify their credentials.
Here’s the thing. While many would prefer to believe that the Carter debacle is an anomalee – the litigation landscape is littered with cases in which medicolegal “experts” weren’t challenged by opposing lawyers. Why don’t lawyers simply check with the College(s) to confirm the (say a psychologist)is authorized to proffer expert opinions in the practice area at issue. Take brain injury cases in the personal injury context for example. Doesn’t a pschologist’s competency in neuropsychology have to be recognized by the College before proffering expert opinions in brain injury cases. The professional standards say a psychologist mist not practice in competency areas (there are nine)not authorized by the CPO. But it seems any pschologist is good enough to be qualified as an expert in the personal injury litigation context. Why is that?
This site says it is intended to stimulate discussion for educational purposes. With this in mind I’d like to pose a couple of questions from the perspective of the layperson – given any layperson could easily – sometimes by accident – become an unrepresented litigant. Say an unrepresented litigant winds up in the family law/custody context or the personal injury/civil litigation context confronting a lawyer and a medicolegal expert. It seems to me to be simple common sense that the unrepresented litigant would check the opposing medicolegal expert to ensure she/he ought is qualified to proffer expert opinion. An unrepreseted litigant can do this in two ways. First – check with the regulating College. Second – check for prior adverse judicial comment. (Though it is clear that for whatever reason – in the civil litigation context – experts are often not checked by lawyers via their College.) That said, it is the prior adverse judicial comment issue that I’m hoping will spark some debate. At the risk of over-simplification – the question is this: why are triers of fact loathe to allow prior adverse (quasi)judicial comment to be adduced to challenge an expert during the qualification phase? If several arbitrators/judges have already written in decisions that so-and-so was highly partisan – or acted as a “hired gun” – what sense does it make to ignore this judicial commentary? Don’t judges trust what other judges have had to say about the quality of an expert’s testimony? Shouldn’t this information be considered as a red-flag? Or if a trier of fact has written that an expert was found to he unqualified or to be proffering opinions outside her/his specialty area – isn’t that worth thinking about when qualifying that expert in subsequent cases? Why do judges/arbitrators give experts a perpetual table rasa? I know judges don’t want to create an “expert chill”. But if an expert concedes to be unqualified in the area at issue under cross-examination – how does it advance the system of justice to ignore that concession in subsequent cases and allow the same expert to proffer “expert” testimony in that same area in subsequent cases? Sure, experts need to be given certain protections in order to encourage full and robust discourse when proffering expert opinions/testimony. But not considering prior adverse judicial comment regarding an experts lack of ccompetence makes no sense – at least not from the perspective of the subject of the opinion. Little wonder there is a proliferation of hired guns masquarading as experts in the civil litigation landscape. One expert has called it “deplorable”. Why is everybody so worked up about Carter and his unqualified expert testimony in the family law context when Carter merely illustrates the predictable outcome of not challenging experts in Ontario’s civil litigation landscape? Wouldn’t an “expert chill” be a good thing if it purges the system of bogus experts. Qualified and impartial experts would’t care if opposing lawyers or unrepresented litigants checked their qualifications via their College and via prior judicial commentary. Sorry for the long question but it seems to me to be an important one that goes to the very heart of the Carter debacle and that requires debate. And if you aren’t interested in civil litigation – consider the prior adverse judicial comment issue in this way: if subsequent triers of fact had considered Justice Dunn’s early warnings (in the form of judicial comment)as a red flag – would so many wrongful convictions based almost entirely on Dr. Smith’s (now self-confessed “woefully inept”)”expert” testimony have occurred ?
You raise an interesting issue. Perhaps this is an area of law that is ripe for incremental change. I doubt that permitting previous judicial comments to be raised with respect to expert witnesses would have changed the outcome in Carter or any of the tragic cases decided based upon Dr. Smith’s work. But your point is well-taken.
The Carter case illustrates that lawyers aren’t confirming qualifications of medicolegal experts with the regulatory colleges – it is not an example of the problem of overlooking prior judicial comment. Dr. Smith is an example of both:
1) Justice Dunn’s warning in the form judicial commentary shouldn’t have been ignored and 2)The Royal College of Physicians and Surgeons of Canada has yet to offer forensic pathology (nevermind)the subspecialty of pediatric forensic pathology as a specialty area. Train for this specialty area is still under development. Yet Dr. Smith was repeatedly qualified as a specialist in pediatric forensic pathology. A two minute check at the Royal College would have revealed that no such specialty training is offered in Canada. The failure to check the qualifications of “expert” witnesses and the refusal to allow prior adverse judicial comment are subjects that Ontario stakeholders steadfastly refuse to talk about. But the problems with respect to expert witnesses gets play in other jurisdictions.
Google this article for an interesting overview:
“Above the law: the problem with expert witnesses”
Scotsman – John Forsyth – ‎Feb 7, 2010‎
THE vile calumny version of the expert witness is that they are hired guns, delivering the best evidence that money can buy. …
When it comes to the quality of medicolegal expert testimony in the Ontario civil justice system – incremental change won’t suffice. Tranformational change is what is required. In the same way that Dr. Charles Smith’s (now self-confessed “woefully inept”) testimony in the criminal justice context resulted in several wrongful convictions – inept/partisan/unqualified “expert” testimony in the civil justice context has resulted in God only know how many wronful decisions. While the victims of Dr. Smith’s unchallenged expertise will be compensated – the victim’s of the testimony of bogus experts in the civil justice context are kept in the dark. Brain injured litigants who have had their claims denied on the basis of “expert” psychological testimony proffered by psychologists not authorized to practice in the area of neuropsychology aren’t being told the expert wasn’t an expert after all. Part of the reason is that once one starts looking at all the unchecked, unchallenged, unqualified “expert” testimony that carried the day in many civil justice cases – the question becomes this: if lawyers have a duty to check and challenge opposing experts – then is the failure to do so negligence? And if it is negligence – then is the negligence systemic? How can it be that a medicolegal expert can be described by one judge as that of a hired gun and yet never be confronted with this judicial comment/rebuke in subsequent cases – as a warning to subsequent triers of fact? How can it be that an “expert” can concede to a lack of expertise in one case and yet become the expert of preference for subsequent judges in cases involving the same area of expertise? How can it be that one “expert” is described in some cases as a surgeon – in others as a generalist – in others as a specialist – and in others is caught presenting misleading qualifications to the triers of fact? How can it be that one psychologist proffered “expert” testimony in hundreds of brain injury cases without proper qualifications according to his lisencing body? And then there is Carter. Many of the “experts” in the civil justice system are less credible than the litigants whose credibilitly the “expert” seeks to destroy. To make matters worse – even the unqualifeid experts enjoy witness immunity. This only becomes apparent when one searches this or that expert and arranges the cases chronologicaly. If the victims of Dr. Smith’s unqualified expert testimony are to be compensated – then why shouldn’t the victims of bogus experts like Carter be compensated? And for that matter – why not the victims of unqualified experts in the personal injury context? Justice Osborne talked about the problem of hired guns masqaurading as experts. Former Justice LeSage spoke at the Goudge Inquiry about the need for judges to step up to the plate with respect to their role as gatekeepers of expert testimony. But nothing has changed – at least not in the civil justice context. Why is that???
I couldn’t possibly respond to all of the issues you are raising. Personally, I don’t think the entire method of deploying expert witnesses in court is as badly broken as you appear to be suggesting. Attention is being focused on the cases that pose serious challenges while uncontroversial decisions are off the radar.
The courtroom is adversarial and there are benefits to this as well as problems which arise by the very nature of the process. The rules and procedures have evolved in accordance. It’s a ‘best practices’ system rather than an ideal one … there will always be room for improvement, and there will never be agreement about what constitutes improvement.
You write: “Attention is being focused on the cases that pose serious challenges while uncontroversial decisions are off the radar.”
It is true that attention was focused on Dr. Charles Smith but only because of the Herculian efforts of a couple of lawyers who care about wrongful convictions. And it is true that Carter has been “outed”. But that is only because the grandfather of one of the subjects of Carter’s handiwork complained to the CPO. It is important to note that it wasn’t a family court judge or lawyer who “outed” Carter. Left to them – his expertise would not have been challenged and his testimony would remain “uncontroversial”.
To assume the cases that are “off the radar” don’t involve unqualified experts is self-serving folly. I can show you lots of such cases that the stakeholders in the pi context refuse to acknowledge. Their response is thundering silence.
And just when I thought the problem of bogus experts couldn’t get worse – a column in the current Lawyers Weekly, written by a law professor, recommends that the College of Psychologist refuse to investigate complaints from people involved in child custody cases because the are a) maniplulative and/or b)they suffer from personality disorders and shouldn’t be taken seriously (a tautology of the first order).
Let’s apply his circular logic (recommendation) to the Carter case. The judges and lawyers didn’t disapprove of Carter. In fact they preferred Carter’s “expertise” over that of qualified psychologists. Carter’s usual “diagnosis” was that the parent(s) suffer personality disorder of one sort or another. Only a grandfather has the common sense to check Carter’s credentials and only then does Carter’s testimony move from the realm of the “uncontroversial” and into the realm of the “controversial”.
Again I stress – this happened despite – rather than due to – the efforts of judges and lawyers.
If the recommendations in the Lawyers Weekly were currently in effect – and “judicial endorsement” was required before the CPO would investigate a complaint – then Carter would still be proffering “expert” testimony and judges would still be falling in love with his “expertise” – and sleepy lawyers would still be “forgetting” to check and challenge his qualifications.
If you care to contact me – I’ll give you multiple examples of unqualified testimony over the last decade that still remains “uncontroversial”.