The Direct Examination
| Author | John Hollander |
| Pages | 165-240 |
the direct examination
chapter five
The Direct Examination
Introduction to Direct Examination of
Experts
with experts who are called to the
witness stand by the direct examiner. e case has reached
trial; the gloves are o; the witnesses will testify.
Trial judges often say that direct examination requires
more skill than does cross-examination. Maybe so — clear-
ly, cases are built on direct examination, and they are de-
stroyed with poor directs that set up eective crosses by
opposing counsel.
e tips and techniques that appear in this section
cover several discrete areas of direct examination. is is
not the place to discuss direct examination in general. For
that, readers are directed to the Young Advocates Series
handbook, Examinations in Civil Trials. However, experts
are a dierent breed of cat. ey are professionals. Often
they are as experienced or more so than are the lawyers
1 John Hollander, Examinations in Civil Trials: The Formula for
Success (Toronto: Irwin Law, 2015), online: www.irwinlaw.com/
titles/examinations-civil-trials.
who will direct and cross-examine them. All witnesses are
entitled to respect. Somehow, expert witnesses are entitled
to both respect and a little fear.
Sometimes, experts can make the case in their dir-
ect examination. Experts usually do not have any skin
in the game. ey have their professional reputations at
stake, but little else is connected to the outcome of the
litigation. at said, experts often have their own agen-
das: they may want to build up a practice in the eld;
they may want to be retained in the future as experts on
a similar subject; they may want to curry favour with the
bar, or at least one portion of it; and they do want to earn
their keep as expert witnesses for hire.
Unlike lay witnesses, the Ontario Rules of Civil Pro-
cedure (and those of the other provinces) set out how
expert witnesses must present their case:
• ere must be a written report that presents the
body of their opinion, with specic contents.
• ere must be advance notice.
• ere must be a curriculum vitae or other informa-
tion to identify the expertise.
• Although not a written rule, there must be a voir
dire to establish whether the opinion evidence is
admissible in the rst place.
None of these constraints apply to lay witnesses be-
yond the occasional requirement for will-say statements.
While parties are often subjected to examinations for dis-
covery, this rarely applies to expert witnesses. Lawyers are
2 Ontario, Rules of Civil Procedure, RRO 1990, Reg 194 [Ontario
Rules].
the direct examination
usually prevented from examining expert witnesses be-
fore trial unless the expert has sworn an adavit for some
interlocutory step, or the expert is a participant who is
produced as a witness during the discovery process.
e lawyer’s outline to examine the expert should fol-
low the formula set out in the rule. Using the British Col-
umbia rule - as a template, the direct examination could
proceed as follows, with the question words in brackets,
and the rule provision cited verbatim thereafter. Replace
“the expert” with “you” or “your.”
First, the voir dire:
a. (What is) . . . the expert’s name, address and area of
expertise;
b. (What are) . . . the expert’s qualications and em-
ployment and educational experience in
his or her area of expertise;
e lawyer then states, “Your Honour, I tender the
witness as an expert in the eld of . . .”
en, after qualication, the direct examination:
c. (What were) . . . the instructions provided to the ex-
pert in relation to the proceeding;
d. (What is) . . . the nature of the opinion being sought
and the issues in the proceeding to which the opinion
relates;
e. (What is) . . . the expert’s opinion respecting those issues;
f. (What are) . . . the expert’s reasons for his or her opin-
ion, including
3 British Columbia, Supreme Court Civil Rules, BC Reg 168/2009,
rr 11-2 and 11-6.
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