Kates Estate – Decision of Justice Gans

Blog – Kates Estate – Decision of Justice Gans – 18 November 2020 

Yesterday Justice Gans released his decision in the Kates Estate.  A hard fought case heard over 9 days in September and October.

In his usual edifying choice of words Justice Gans, in particular, had the opportunity to put into practice what he has called “hot-tubbing” a process that he has been advocating for  many years and more recently in the context of the pandemic (See Arthur Gans, “Litigating in the time of COVID-19: Try Hot-tubbing … While Keeping a Safe Distance” (2020) 39:2 Adv J 37)).

This hot-tubbing process is putting together a collaborative process for the experts witnesses to discuss and review critically the evidence – rather than serving as adversarial messengers for the parties.  Justice Gans ordered this process as in his words “he had some measure of difficulty understanding how much weight could be given to a retrospective analysis of testamentary capacity, even by skilled psychiatrists, who had to form their opinions based on the reports of others, which may or may not have been fulsome, complete or accurate at first instance.”

The process means getting the experts hired for the benefit of the court to work together (ie discuss their various viewpoints) to provide focussed evidence to assist the trier of fact and to collaborate in its presentation.  In this particular case, a “Collaborative Letter” was created by counsel together for the purpose of the experts, in this case Drs. Richard Shulman and Ken Shulman (no relation). 

During their “hot-tubbing” together Drs. Shulman debated the facts, law and medical evidence and theories to, together, provide a more fulsome analysis.  This process does not necessarily result in a change of opinion by the expert but provides a greater sense of independence and neutrality that the expert evidence process desperately needs in our litigation system.

Although used for the first time in an estate litigation case, this concept equally applies to any case where competing expert evidence is being relied upon.

This case represents a fundamental shift in mind-set for the judicial, counsel and client litigation experience which is very much welcomed in an age where cases tend to focus on the one upmanship and superficialness of getting a case done.

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