I raised the issue of aboriginals being excluded from jury pools on your site a couple of weeks ago. Your post suggested you think all is well and that I am somehow a racist for having raised the issue(how you come to that conclusion is beyond me unless you are implying I'm being racist against us whites). Seems to me you are on the wrong side of just about every issue. By "wrong side" I mean you love the legal status quo and the privilege you derive from it so much that you defend all manner of injustices - especially the systemic failure of the system to properly vet its "expert" witnesses. So now I ask - what is your response to this column:
News | Canada
First Nations win probe into lack of aboriginal jurors 2011/08/11 Years of complaints that First Nations people have been systematically excluded from serving on juries in Ontario culminated Thursday in the provincial government calling an independent review into the situation.
Errh, I don't think you read my post correctly. I think the exclusion of aboriginals from jury pools is a terrible thing and a scandal to justice. If I implied otherwise that was an error. I did see the news story -- inquries can be helpful depending on whether their findings are put into place.
And as for experts my point remains -- lawyers do not have a legal obligation to go behind qualifications. It is likely prudent to do so but it's not mandated. That's not a point of policy -- it's just what the law says. It could be changed but that's another matter althoger. I fear you are confusing my views for what the law is.
The "point" in your posts often turns out to be a moving target that I am faulted for having read incorrectly. The issue of checking the qualifications of expert witnesses is arguably one of the most important matters currently in play - especially in the Ontario civil justice context where there is a proliferation of "hired guns" masquarading as impartial friends of the court - some of whom are completely unqualified. How do I know? Because some medicolegal experts have confessed under cross examination to being unqualified - yet show up only days later in other cases proffering unqualiifed "expert" testimony in the same area in which thye confessed to being unqualified! And other medicolegal "experts" are passing themselves off as orthopaedic surgeons despite be listed at the CPSO as general practitioners. Lawyers don't bother to check the health regulatory lisencing bodies (Colleges) of opposing medicolegal or they would discover this sort of stuff. Lawyers, even after the Goudge Inquiry, ignore prior adverse judical comments aimed toward medicolegal "experts". Instead you say there is no duty to check and challenge the qualifications of opposing experts. And you posted earlier that the most you might do is check to see if the university an opposing expert claims to have attended is a legitimate university. This cavalier approach to vetting opposing expert witnesses means that unless the "expert" writes in block letters on his CV that: ten judges have kicked his ass for being bias - or that he has confessed in one case to being unqualified - or that despite being mistaken by a dozen judges to be a surgoen he is really a gp - the lawyers have no duty to check the Colleges and previous cases to discover this stuff. Master Short in a recent case pointed out that the new rules give the expert witnesses the blessing of the court - and therefore the duty to properly vett experts has become paramount. Short is concerned some will never "change their stripes". You, on the other hand, appear to prefer the laid back, sleepy, status quo appraoch to vetting expert witnesses. So again I ask - why do you say there is no duty to "thoroughly" check and challenge the qualifications of opposing medicolegal expert witnesses when the LSUC says exactly the opposite - that there is in fact a duty.
OK, here goes. It is wrong for a lawyer (or anyone) to put up a witness they know to be not what they are supposed to be. That's right in the Rules of Professional Conduct. That said, if someone says they have, say, a PhD and the lawyer has no reason to consider that false the lawyer has no duty to check if there really is a PhD. As for my blog being a moving target, well, I disagree but I am glad to have people write in.
But isn't the approach you desribe the very reason Dr. Charles Smith was able to taint so many cases with his "woefully inept" expert testimony. Isn't it the very appraoch that perplexed Justice Goudge? And isn't it because the family law lawyers prefer to push CV's around their desks at $500 per hour instead of making a two minute check wwith the College (CPO) that Dr. Gregory Carter was able to fraudulently taint so many child custody cases with his unqualifed "expert" testimony? By the way - what happened to that trial? The day it came out that lawyers hired Carter and judges appointed Carter was the day the trial ended and there has been not any word in the press ever since.
7 comments:
I raised the issue of aboriginals being excluded from jury pools on your site a couple of weeks ago. Your post suggested you think all is well and that I am somehow a racist for having raised the issue(how you come to that conclusion is beyond me unless you are implying I'm being racist against us whites). Seems to me you are on the wrong side of just about every issue. By "wrong side" I mean you love the legal status quo and the privilege you derive from it so much that you defend all manner of injustices - especially the systemic failure of the system to properly vet its "expert" witnesses. So now I ask - what is your response to this column:
News | Canada
First Nations win probe into lack of aboriginal jurors
2011/08/11
Years of complaints that First Nations people have been systematically excluded from serving on juries in Ontario culminated Thursday in the provincial government calling an independent review into the situation.
Errh, I don't think you read my post correctly. I think the exclusion of aboriginals from jury pools is a terrible thing and a scandal to justice. If I implied otherwise that was an error. I did see the news story -- inquries can be helpful depending on whether their findings are put into place.
And as for experts my point remains -- lawyers do not have a legal obligation to go behind qualifications. It is likely prudent to do so but it's not mandated. That's not a point of policy -- it's just what the law says. It could be changed but that's another matter althoger. I fear you are confusing my views for what the law is.
The "point" in your posts often turns out to be a moving target that I am faulted for having read incorrectly. The issue of checking the qualifications of expert witnesses is arguably one of the most important matters currently in play - especially in the Ontario civil justice context where there is a proliferation of "hired guns" masquarading as impartial friends of the court - some of whom are completely unqualified. How do I know? Because some medicolegal experts have confessed under cross examination to being unqualified - yet show up only days later in other cases proffering unqualiifed "expert" testimony in the same area in which thye confessed to being unqualified! And other medicolegal "experts" are passing themselves off as orthopaedic surgeons despite be listed at the CPSO as general practitioners. Lawyers don't bother to check the health regulatory lisencing bodies (Colleges) of opposing medicolegal or they would discover this sort of stuff. Lawyers, even after the Goudge Inquiry, ignore prior adverse judical comments aimed toward medicolegal "experts". Instead you say there is no duty to check and challenge the qualifications of opposing experts. And you posted earlier that the most you might do is check to see if the university an opposing expert claims to have attended is a legitimate university. This cavalier approach to vetting opposing expert witnesses means that unless the "expert" writes in block letters on his CV that: ten judges have kicked his ass for being bias - or that he has confessed in one case to being unqualified - or that despite being mistaken by a dozen judges to be a surgoen he is really a gp - the lawyers have no duty to check the Colleges and previous cases to discover this stuff. Master Short in a recent case pointed out that the new rules give the expert witnesses the blessing of the court - and therefore the duty to properly vett experts has become paramount. Short is concerned some will never "change their stripes". You, on the other hand, appear to prefer the laid back, sleepy, status quo appraoch to vetting expert witnesses. So again I ask - why do you say there is no duty to "thoroughly" check and challenge the qualifications of opposing medicolegal expert witnesses when the LSUC says exactly the opposite - that there is in fact a duty.
surely you aren't going to ignore the expert witness issue/qyestion??
OK, here goes. It is wrong for a lawyer (or anyone) to put up a witness they know to be not what they are supposed to be. That's right in the Rules of Professional Conduct. That said, if someone says they have, say, a PhD and the lawyer has no reason to consider that false the lawyer has no duty to check if there really is a PhD. As for my blog being a moving target, well, I disagree but I am glad to have people write in.
But isn't the approach you desribe the very reason Dr. Charles Smith was able to taint so many cases with his "woefully inept" expert testimony. Isn't it the very appraoch that perplexed Justice Goudge? And isn't it because the family law lawyers prefer to push CV's around their desks at $500 per hour instead of making a two minute check wwith the College (CPO) that Dr. Gregory Carter was able to fraudulently taint so many child custody cases with his unqualifed "expert" testimony? By the way - what happened to that trial? The day it came out that lawyers hired Carter and judges appointed Carter was the day the trial ended and there has been not any word in the press ever since.
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