All Disciplines EXPERT WITNESS APEGBC PROFESSIONAL PRACTICE GUIDELINES V1.1 TABLE OF CONTENTS Definitions 1 1.0 Purpose and Scope 2 2.0 Guidelines for Practice 3 2.1 Function 3 2.2 Qualifications 3 2.3 Conflict of Interest 3 2.4 Communication 3 2.5 Confidentiality and Privilege 4 2.6 Practice Standards 4 2.7 Facts 4 2.8 Interpretations 5 2.9 Limits on Expert Testimony 5 2.10 Documents 5 2.11 Fees 5 3.0 Resources and Related Documents 6 Appendix A: Expert Report Template 7 V1.1 Revised July 2016 © 2016 APEGBC. All rights reserved. PROFESSIONAL PRActice Guidelines – EXPERT WITNESS DEFINITIONS The following definitions are specific to the Expert witness practice guidelines for expert witnesses. All An expert who provides oral testimony of these terms are italicized the first time in a legal proceeding. they appear in the text. Legal proceeding APEGBC Includes proceedings in Supreme Court The Association of Professional Engineers of Canada, Federal Court, Supreme Court and Geoscientists of British Columbia. of British Columbia, Court of Appeal, provincial courts (all divisions), small APEGBC professional(s) claims court, tribunals, judicial inquests, Professional engineers, professional royal commissions, coroner’s inquests, geoscientists, and licensees, including arbitration panels, professional disciplinary limited licensees, licensed to practice panels, and mediations. by APEGBC. Seal Decision-maker Any physical or electronic seal applied by The person or persons who must make an APEGBC professional to a document a decision in a legal proceeding. to indicate that he or she is professionally Expert responsible for the work so sealed. An APEGBC professional with special knowledge of a subject beyond that of the average person. Expert report A report prepared by an expert and intended to be submitted as evidence in a legal proceeding. 1 PROFESSIONAL PRActice Guidelines – EXPERT WITNESS PURPOSE AND SCOPE The purpose of these guidelines is to 7) Conduct themselves with fairness, provide guidance to APEGBC professionals courtesy and good faith towards clients, when they are retained to act as expert colleagues and others, give credit where it is witnesses. due and accept, as well as give, honest and fair professional comment […]. The APEGBC Code of Ethics Section 14 (a) of the Bylaws of the Association, states, In the course of their work, APEGBC in part: professionals routinely provide opinions based on their training, experience, […]Members and licensees shall act at all knowledge, and honest conviction times with fairness, courtesy and good faith which could be characterized as “expert” to their associates, employers, employees because the opinions given are beyond and clients, and with fidelity to the public the capacity of the average person. In legal needs. They shall uphold the values of proceedings, however, the terms expert truth, honesty and trustworthiness and and expert witness refer to an individual safeguard human life and welfare and the with specialized knowledge who helps environment. In keeping with these basic a decision-maker understand the area of tenets, members and licensees shall: specialized knowledge. These guidelines […] provide guidance for APEGBC professionals who undertake the role of expert witness. 2) Undertake and accept responsibility for professional assignments only when qualified by training or experience; 3) Provide an opinion on a professional subject only when it is founded upon adequate knowledge and honest conviction; […] PROFESSIONAL PRActice Guidelines – EXPERT WITNESS 2 GUIDELINES FOR PRACTICE 2.1 FUNCTION The opinion of an expert must be the The function of an expert witness is opinion of the expert, not the work of to assist a decision-maker in reaching a others. An expert must carefully consider proper decision by giving an independent, how others contribute to the preparation of objective assessment of the engineering or an expert report. Where others are involved geoscience issues that are the subject of the in preparing parts of an expert report, their expert opinion. An expert can also provide involvement must be clearly indicated, with factual evidence, such as direct observations their names and qualifications, their scope at a site. As decision-makers have repeatedly of work, and their contributions specified emphasized, an expert witness is not to in the report. Experts should produce serve as an advocate for either party. most of an expert report and the opinions it contains. Expert reports produced by Different experts may express different others under the direct supervision of an opinions. However, this does not necessarily expert likely will be given less weight by mean that one of them is wrong, or that one the decision-maker. of them is acting improperly. It is for the decision-maker to determine which expert 2.3 CONFLICT OF INTEREST opinion it accepts or gives more weight to. APEGBC professionals must consider 2.2 QUALIFICATIONS whether they have any personal or business relationships with any of the parties in the An expert must possess strong legal proceeding that may give rise to a qualifications in the technical areas and conflict of interest. APEGBC professionals issues that are the subject of the expert also should consider whether any of their opinion. These qualifications must be set clients could be disadvantaged by their out in the expert report. To demonstrate participation as an expert, even though the expertise, an APEGBC professional should client is not involved in the legal proceeding. provide a detailed resumé of his or her experience, training, knowledge, and If there is a possible conflict of interest, the relevant publications. APEGBC professional should immediately advise both the client and legal counsel An APEGBC professional may provide an so they can make an informed decision opinion on a topic about which he or she with respect to retaining the APEGBC has the requisite specialized knowledge to professional as an expert. If an APEGBC be an expert, but that is outside his or her professional cannot satisfactorily conclude usual field of practice. Generally speaking, that no conflict of interest exists, he or she the more qualified the expert, the more should decline to act as an expert. weight will be given to the expert’s opinion by the decision-maker. 2.4 COMMUNICATION While previous experience as an expert is Above all, the provision of expert evidence generally viewed favourably, experts who is an exercise in communication. A good present evidence solely for or against a class expert has the ability to communicate of parties, or rigidly for or against a point of persuasively, in a manner that is logical, view, risk being branded as biased. APEGBC balanced, and reasonable. At all times, the professionals should be aware that the expert must remain objective and cannot evidence of “niche” experts may be rejected allow himself or herself to become an or given less weight if their evidence advocate for a position or party. The expert has previously been discarded in a legal must impart an opinion that is impartial, proceeding because of bias. unbiased, and fair to all concerned. 3 PROFESSIONAL PRActice Guidelines – EXPERT WITNESS A good expert will also possess the ability When an expert is retained by legal counsel, to support his or her opinion when it is the opinion of the expert will be considered tested, sometimes forcefully, through part of the legal counsel’s preparation work cross-examination by legal counsel for an and, therefore, be covered by litigation opposing party. privilege. To preserve this privilege, legal A good expert will remember that the counsel will probably express much stricter decision-maker will best be able to requirements with respect to confidentiality understand the expert opinion when clear and distribution of information. and concise language is used, relying, where possible, on non-technical words 2.6 PRACTICE STANDARDS and simple analogies to explain otherwise An expert generally will be asked to give technical concepts. an opinion as to the applicable practice standards at the relevant time and location. 2.5 CONFIDENTIALITY AND The expert may also be asked to give an PRIVILEGE opinion as to the adequacy or inadequacy of a design, assembly, or construction, or An APEGBC professional should confirm, the processes, methods, and procedures in writing, with the client or the client’s used in relation to the applicable practice legal counsel at the outset of an expert standards. While an expert may provide retainer whether the APEGBC professional an opinion as to whether a course of has authorization to contact others in practice met the applicable practice relation to the retainer. If authorization is standards, it is inappropriate for an expert not given, the expert should note this in to determine whether compliance with his or her expert report, if one is prepared. practice standards was achieved. It is for the An APEGBC professional should not decision-maker to make a determination on provide an expert opinion with insufficient whether the conduct of the party involved information. in the legal proceeding met the standards When first retained as an expert, an of practice. APEGBC professional may be asked to Recent decisions in British Columbia have keep the matter, including the fact of the confirmed the test used by decision-makers retainer, confidential. When the retainer to determine whether a professional has involves reviewing the work of another properly performed his or her services. APEGBC professional, some APEGBC The test is whether another reasonably professionals have interpreted Bylaw 14(a) competent and reasonably prudent (7) as a requirement to contact the other professional acting in similar circumstances APEGBC professional. Prior to contacting would have conducted himself or herself in another APEGBC professional, the expert the same manner. It is not necessary that should discuss the issue with the client the professional’s work be perfect. It need and confirm whether this course of action only be up to the standard of the average is acceptable.