The right word can make a big difference, McLeish tells bar

Ensuring an expert report is drafted properly may come down to the subtle difference between words like “possibly” and “probably,” Toronto critical injury lawyer John McLeish told participants at Ontario Bar Association Institute 2015 while discussing the significance of the Ontario Court of Appeal’s ruling in Moore v. Getahun, 2015 ONCA 55 (CanLII).

McLeish, partner with McLeish Orlando LLP, participated as a panelist during a Feb. 4 session titled “Is there a final word on dealing with experts.” The panel was moderated by Justice Mark Edwards of the Superior Court of Justice.

Moore reversed a controversial trial decision that said the practice of lawyers talking with expert witnesses on draft reports should stop.

When asked about communicating with experts, McLeish said, “Ideally, we like to talk to experts beforehand. We like to explain the issues and the legal terminology.”

A family doctor, he said, isn’t likely to know the subtle differences between phrases like “possibly at risk for,” on the one hand and “likely at risk for,” on the other, said McLeish.

‘Significant differences’

In reviewing a report, if a lawyer can speak to an expert, the lawyer can point out the very significant differences in meaning between these kinds of phrases, he added.

On the topic of sending expert reports to clients, McLeish said whether or not it’s appropriate should be determined on a case-by-case basis.

“The vast majority of the time, we won’t send a draft to the client. The odd time we will,” he said, noting only “rare occasions” call for sharing reports with clients.

It’s also wise, said McLeish, to advise experts to retain in their files all draft reports exchanged between the expert and the lawyer, even though these are not producible except in special circumstances.

Overall, said McLeish, Moore is a very welcome decision.