Making the solicitor-expert witness relationship work

The solicitor’s perspective

The environment in which solicitors
are litigating now is hostile. Hitherto expected cooperation between the parties to modify court timetables and lenience from the judiciary are all things of the past.

If solicitors are suddenly tougher on experts, it is because judges are being tougher on solicitors.

The landscape for experts is no different.

So what does this mean for the continued involvement of expert witnesses in litigation in the post-Jackson/Mitchell landscape?

My golden rules are set out below:

1. Frank communication.

The key is to ensure that there is extensive and detailed dialogue between solicitor and expert from the very outset. The precise nature of the expert’s instructions and ambit of any reports need to be identified.

If the expert is not able to provide such a
report or be involved as suggested due to work commitments he/ she should decline instructions at the outset.

2. Careful and reliable fee estimates.

Solicitors need to rely on the expert’s fee estimates for each of the following steps: the expert witness reports; joint statements; and, any consideration of documents beyond disclosed reports or involvement in conferences. We need to know that these fees can be properly included in the cost budget presented to the court.

The expert will need to be able to justify their costs and time. The parties will rely on this and so will the court – changing fees beyond a budget will be difficult. We cannot promise any increase would be possible. That is the way of the world now.

3. Absolute compliance with deadlines.

I promise to tell my experts at the earliest opportunity what deadlines they will have to meet. I will give them the dates and windows of steps ordered by the court for each report that they are producing, addendum reports, questions to be responded to and joint statements with their opposite number.

If an expert, on seeing the directions order, realises it cannot be complied with, he must let me know so that a prospective application to amend the timetable can be made and that the knock-on effect of the absence of a piece of expert evidence on future directions can be considered.

It may mean the remainder of the directions require re-scheduling. It is not possible, for example, for the care experts to report unless the principal medical experts have reported and given a prognosis first.

It is likely that any request to reschedule that will interfere with an existing pre-trial review or trial date will fail. So comply with the deadlines absolutely, or tell me promptly of a problem so I can make an application to the court.

4. Have good systems of organisation and diarising.

If an expert has to consider his workload, he should do so at the point of accepting instructions and, so far as possible, diarise forward all future steps. We know from post-Mitchell cases that a good reason is required for relief from sanctions to be permitted.

As stated above, for solicitors, staff shortages and administration problems are some of the many reasons deemed not good enough to get relief from sanctions.

Experts will be given no greater leeway. Prioritising a day job as a practising medic and delaying a ‘side’ job doing medico-legal reports will not be a good excuse, I fear.

5. If you cannot action the timetable for good reason, tell me early.

Even in the current environment, it is likely that the court will be sympathetic to periods of ill health or indisposition which are beyond the expert’s control. More importantly, if key documentation or evidence is required to enable the expert to report, identify this to me early and explain why so that I can make an application with supporting reasons and evidence.

The remainder of the golden rules are the same as they ever have been for experts:

6. Be clear in your opinion.

7. Be accurate reporting facts.

8. Avoid unexplained technical jargon in
your evidence.

9. Do not confuse being unnecessarily
verbose with being thorough; understand the requirements of an expert witness under CPR.

10. Try to not offend the client or, even worse, the judge.

11. Be user-friendly – communication between experts and solicitors is always helpful.

12. Be good value for money.

 

We have now all got to be infallible, comply with all court timetables to the absolute letter and, using our best crystal ball, identify, before embarking on any work, appropriate levels of fees for the job.

Good solicitors and organised experts experienced in the way of litigation and the demands of their roles will be able to manage
this without losing sleep. The old method of having a cordial relationship with the solicitor
on the other side and agreeing extensions of time, as necessary, within reason, is history.

The absence of that collaborative and cooperative approach in complex litigation is unhelpful. We will all undoubtedly get used to the new zero-tolerance regime but, in the meantime, we will have some uncomfortable moments.

One could be forgiven for thinking that the Jackson/Mitchell changes were righting an imaginary wrong, but litigators have lived through repeated changes in the court
procedure rules and the strength of our legal system has historically been the quality of the lawyers and experts working together in the interests of justice.

In this regard we are bloody but unbowed.

We will have to learn to love the new litigation environment. As William Arthur Ward said: “The pessimist complains about the wind; the
optimist expects it to change; the realist adjusts the sails.”

Solicitors and experts both have to be realists. SJ

Catherine Leech is a partner specialising in catastrophic injury claims at Pannone, part of Slater and Gordon www.pannone.com

The expert’s perspective

How might experts, in their relationships with solicitors, assist in achieving economies in the administration of civil justice, while preserving or improving our reporting standards at the same time?

Here I identify some problems which have arisen, mostly in the last two years, and circumstantially –though not necessarily aetiologically – related to Rupert Jackson’s report.

I have also listed some suggestions where obvious practical solutions appear.

1. Lawyers should define general legal issues; experts should be left to unearth special issues.

In their instructing letter, solicitors usually identify issues that they want the expert to address. Obviously these are necessary and helpful: unambiguous legal questions on causation, liability and breach of duty are essential fundamentals in all letters of instruction.

However, the expert may also be instructed to address a list of additional, speculative questions to do with the medical details of the case. This can be counter-productive: after putting the solicitor’s legal instructions into the context of the relevant facts revealed in the customary chronology, the list of medical issues is usually different from the solicitor’s list, because either the solicitor was unaware of the facts revealed only after the expert has examined the notes, or his/her assumptions on treatment or causation is wrong.

It would be more economical if solicitors routinely relied on the expert to identify the technical issues derived by the expert from the relevant facts of the case, rather than producing a list which often seems based mostly on guesswork.

2. Opposing experts should meet earlier in the course of a case.

In my experience of expert case conferences, most of the questions we are asked are agreed ‘on the nod’. If judges were to insist that experts should have a telephone conference soon after the exchange of evidence, only relevant issues would remain in the case and a lot less time would be wasted. Experts from each side should meet earlier in the case rather than later as at present.

3. Agendas for expert conferences should be precise, succinct and agreed by both parties.

Often the questions which instructing solicitors on both sides will generate for experts to cover during these conferences are much too numerous and the agendas much too long. In days gone by, there was active cooperation between parties in assembling a focused, mutually agreed agenda not usually exceeding ten items.

That discipline seems to have been lost: solicitors simply cram agendas with irrelevant or opaque questions, thereby wasting a lot of expensive time. During my last two conferences we have had to deal with 40-50 questions, some of them reiterative, others impossible to understand. Short, more focused agendas, drawn up by experts and agreed by both parties would reduce costs.

4: The pre-action advisory letter (aka ‘screening report’, ‘desk-top report’) cannot substitute for a substantive report to the court.

Since the latest financial squeeze was applied, more solicitors cut corners by demanding screening reports on causation, liability and breach of duty without the expert interviewing the client, the reports to be based only on a study of the records, with no client interview or formal chronology. In a very recent and complex case a provisional ‘screening’ report was disclosed to the other side despite my demand that I should see the client before the report could be regarded as substantive.

Constructing a chronology of the relevant facts is essential in ensuring that the court understands the data on which the relevant issues and opinions are based. Almost invariably, I find that gaps in the record can only be filled by interviewing the claimant. In all complex medical cases the expert must interview the claimant before writing a substantive report.

5. Delivering unsorted, unpaginated medical records to experts is a false economy and will attract much larger fees. Synoptic data may be useful in big cases.

In cases involving chronic illness, the notes frequently weigh more than 5kgs. If a chaotic record is sent to the conscientious expert,
then identifying the relevant facts will be much more time consuming and therefore expensive than interrogating the sorted, chronologically ordered record.

Solicitors who regularly succeed in instructing me will routinely present the paginated medical records in ring-bound folders or on CDs with an index for each volume. The notes are sorted in chronological order within appropriate sections.

Solicitors often obtain a synoptic chronology from another expert (usually a well-informed nurse). The additional expense of a synopsis is justified in helping the expert to navigate through a large records bundle or in preparing a screening report, thus reducing his/her fee.

6. Lawyers’ agents should be held to account for the quality of their work in commissioning and servicing the expert.

Chaotic notes, communication failure and incompetence are the commonest cause of
extra work paid for at the expert’s (or the solicitor’s) hourly rate. One might expect that hiring an agent would help improve this situation, albeit at extra expense. Far from it: some agents will take the cheapest short cut if they can get away with it, frequently outsourcing services to second-rate operators and paying little attention to the quality and promptness of their service.

It is in the interests of the solicitors, their clients and the Ministry of Justice for lawyers’ agents to be licensed and regulated to provide a service which meets the expert’s requirements at a reasonable cost to the client and the taxpayer.

7. Experts will benefit from more feedback from lawyers on the quality of their reports.

Time is money in every element and stage of the legal process. One consequence of waste reduction has been the loss of our legal partners as auditors of our service. A brief, occasional feedback letter from a lawyer, outside the
normal CPR part 35 questions, would not be
time wasted.

Of course, our professional reputation is reflected in our bank statements and in the number and quality of referrals. But in maintaining the quality of reporting, constructive criticism from a professional colleague is probably as effective as attending yet another course.

And for those of us who were infuriated by the Moses LJ dictum that retired doctors provide inferior expert reports, we look anxiously to our solicitor clients for the evidence, so that the allegation can be decently debated before being engraved on tablets of stone.

8. Training.

Training and continuing professional education (CPE) are essential to a career in reporting informatively to courts. The mantraps awaiting the virginal expert are not limited merely to a mauling in court. Skills and abilities in writing reports, reliability, consistency, punctuality, all need sharpening to cope with the CPR regulations.

A more-than superficial knowledge of basic civil law is necessary, to comprehend fully the over-arching responsibility of all participants in a case that legal redress will be achieved justly and proportionately. Basic skills need to be learned
and a modular course is ideal for busy clinicians
(for example, the Bond Solon/Cardiff University
Law course); to keep pace with changes in CPR
and listen to accounts of recent instructive cases,
the annual conference provided by the Expert Witness Institute or Bond Solon are worth attending; and, for valuable texts for experts, I would recommend the Little Books series from the UK Register of Expert Witnesses.

The MoJ has stamped her feet, the worms are now rising out of the softening earth, and I have no doubt more will appear. SJ

Professor Robert Sells is a consultant surgeon at Prof R A Sells Expert Witness. He has more than 30 years' experience reporting on civil cases involving general surgery and transplantation