Solicitors warned against 'doctoring' expert reports

The Jackson reforms are causing conflict between expert witness services and instructing solicitors.

Speaking at the Bond Solon expert witness conference, occupational therapist Dr Catherine Willson said the reforms' aim to increase efficiency and reduce litigation costs has had a significant effect on budgets and deadlines.

"The deadlines have affected us in terms of report turnaround and also referred work. We're increasingly pressurised in terms of the timescales we've got to produce documents and consider referred work," She commented.

Dating reports

Willson referred to the issue of lawyers doctoring expert reports which she said occur in minor ways, such as by making "frequent requests" to consider the dates of other reports Willson has relied on in the preparation of her own.

"One issue is the removal of dates. Our way of practice is to put into an appendix the reports we've relied on with their dates. But we're now asked to remove the date of the report. Is that acceptable? We don't feel it is," explained Willson.

She continued: "What we've also found is that solicitors have taken the dates out before serving the reports, without asking us if that's acceptable, which to my mind isn't good practice."

The second form of doctoring comes in changing the dates of reports completely. "For example" says Willson, "we have the report of Dr Smith, dated August 2014, and we're asked to update that to October 2014. That's fine and I completely understand solicitors don't want draft reports becoming disclosable,"admitted Willson.

"The new guidance says if the solicitor sends reports or documents to us, they have to tell us if those reports are updated and which have been served. But at the moment we're not always being advised of that."

Subconscious analysis

Finally, Willson raised concerns at removing reference to certain documents from her reports: "We're often asked to remove a report from our list of what we've relied on. If you've read something, consciously or subconsciously, it's in your mind and might affect your analysis.

"I was asked the other day to remove the condition and prognosis report from the paediatric neurologist for a care report on a child with cerebral palsy. My first thought was: 'How can I say I haven't relied on this report when making my future recommendations?' When I looked at my instructions, I found I hadn't actually been sent the report to consider."

Willson gave this example to show that solicitors are under a huge amount of pressure, just like experts. "But it has a significant impact on our reports," she said. "We need to find some solutions to this. It's causing conflict between our services and the solicitors who are instructing us. We want to be efficient and provide a good service to solicitors and clients, but it's important that we don't compromise our professional integrity."

Informing the courts

Responding to Willson's comments, Mark Humphries, a commercial litigation solicitor and senior partner at Humphries Kerstetter, said: "As a former SRA board member and as a former member of the Law Society rules and ethics committee, I want to be absolutely clear: the expert's report is to be authored by the expert. It is perfectly acceptable for a solicitor to make suggestions to the expert as to changes to the report, but it is completely unacceptable for a solicitor to doctor an expert report."

Humphries added: "Catherine asked for a solution to the problem of doctoring, and I'll give you one. An expert in that situation should seriously consider, after making all appropriate complaints to the solicitor, and if the matter is not rectified to their full satisfaction, contacting the court and telling it there has been a change made to your report after you delivered it to the solicitor."

Mark Solon, solicitor and director of Bond Solon Training, commented: "It's a basic principle of experts' work that it is the duty of experts to help the court on matters within their expertise and this overrides any obligation to the person from whom experts have received instructions or by whom they are paid. Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation."

John van der Luit-Drummond is legal reporter for Solicitors Journal