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Expected Testimony Involves Truthfulness and Impartiality In Adherence to Court Rules
Question: Does an expert witness serve the court or the party that retained them?
Answer: An expert witness is required to provide fair, objective, and non-partisan evidence, prioritizing the truth-finding process of the court over obligations to the retaining party, as outlined in Rules of Civil Procedure, R.R.O. 1990, Regulation 194, section 4.1.01.
Does a Witness Appearing As An Expert Serve the Court or Serve the Person That Retained the Expert?
An Expert Witness Is Required to Provide Testimony That Is Given With Fairness and Objectivity While Serving Foremost the Truth Finding Process of the Court.
Understanding the Requirements and Expectations For Truth and Impartiality Within Testimony From An Expert Witness
Serving as an expert witness is the zenith of professional practice in any field and the arboricultural industry is without exception. Writing an expert report within the comfort of an office is one thing; but, expressing the opinions contained in the expert report within a court setting, while subject to the cross-examination of the most adept legal minds is a whole different ballgame. Exacting standards and high expectations make it a mentally taxing task mean that giving courtroom testimony is only for those without faint of heart. From the initial site visit and all the way through to a court hearing, the written material and personal conduct of an expert witness is intensely examined.
The Law
The role and duty of every expert witness within legal proceedings is to remain fair and objective with opinions that remain within the scope of knowledge of the expert and contribute to the truth finding process of the court. The duties of an expert are addressed by Rule 4.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, which specifically state:
Duty of Expert
4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
Duty Prevails
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.
Standards of Profession
The American Society of Consulting Arborists (ASCA), provides Standards of Professional Practice (ASCA, 2011) developed specifically for arborists. The standards identify and focus upon virtues that tree consultants should strive to achieve such as:
- Acting With Competence – working to a measured standard;
- Acting With Due Care – a level of performance necessary to fulfill specified requirements measured against a standard of care;
- Acting With Impartiality – acting as a disinterested and unbiased third party;
- Acting With Independence – free from influence, control, or domination;
- Acting With Integrity – candid, fair, honest and of sound moral principle;
- Acting With Objectivity – free from personal influences, emotions or prejudices; and
- Acting In Public Trust – honouring the public trust in professionals and serving the public interest.