Brain wave

Brain injury cases present a challenge to litigators. Those injured may have no insight, and even subtle damage impinges upon all aspects of daily living and relationships. Experts are expected to opine upon these injuries after only a brief consultation.

Lack of empathy and understanding combined with poor communication skills often render the brain injured isolated and unsupported. Relationship breakdown and failure of support services to recognise the problem are common. Instructions can be inconsistent and letters and appointments ignored. Clients may be regarded as difficult and unhelpful and the solicitor may have to bring the injury to the attention of the professionals.

Often the extent of injury is not documented in records. A daily diary and detailed statements from family and carers should address the problems and changes and lack of capacity arising from the damage. But experts often complain that lawyers have unrealistic expectations in expecting subjective symptoms to be quantified, particularly with subtle injuries which are ill defined in subjective descriptions by third parties.

Selecting experts

It can be difficult to know where to start when selecting experts in brain injury cases. Instruct a key expert first, such as a neurologist, and ask which other experts are necessary as the case unfolds.

Experts must be independent, unbiased, professional, objective, thorough and able to gain the patient's trust and explain complex medical issues to the court. Judges without specialist expertise in the area of brain injuries will rely heavily upon expert evidence which is crucial in determining the outcome of the case.

The best experts are busy but it may be worth waiting for. As long as agreed timescales are adhered to, planning can usually accommodate such delay. Unscheduled delays are not acceptable.

Psychometric assessment at an early stage will determine capacity and whether to appoint a litigation friend. Experts must be aware of the legal tests under the Mental Capacity Act 2005 and likely challenges to be made by the defendant.

A rehabilitation expert will assess condition and prognosis and cost rehabilitation, which should begin as soon as possible where appropriate. A pre-instruction discussion with an expert establishes rapport while confirming expertise and the expert's experience in acting for both claimants and defendants. Such an expert will be respected by both sides and provide insight into the defendant's likely tactics. The expert should be of sufficient standing not to be bullied at experts' meetings.

Expert evidence must be reasonably required to resolve the proceedings. It cannot be adduced without the court's permission, so obtain this at an early stage to ensure recovery of costs. Ask instructed experts to explain to the court why further experts are necessary. Do not instruct a plethora of experts with resultant confusion and lack of consensus and failure to recover costs.

Experts must be sensitive to the impact of the damage and aware that the purpose of damages is to place the claimant in a position as though the injury had not occurred. Quantum experts should be familiar with eligibility for state benefits, loans, direct payments and assessments.

Consider a split trial so that the claimant is not examined by numerous quantum experts unnecessarily and unnecessary costs are avoided. Use an early interim payment to purchase and adapt accommodation, appoint a case manager, carers and therapists. Experts can use the care regime as a basis for reports and it is difficult for the defendant to challenge an established regime. In modest claims, defer the purchase of property.

A case manager, carers and therapists can be appointed and assistive technology utilised.

Instructing the expert

Expert reports are essential for a successful claim. Advise what is expected from the report and explain the layout of the report as defined in CPR. If necessary, send a copy of CPR 35 and the direction. Key points to note include:

• Agree fees and timescales before instructing the expert.
• Experts must stay within their area of expertise. A question in the agenda for the meeting of experts can ensure deference to the appropriate expert.
• Breach of duty experts must have been practising in the relevant area at the time of the alleged breach.
• Questions of fact are matters for the court. If there are several possible scenarios, ask experts to opine on each one.

Experts must comply with directions. The practice direction, paragraph 8, mandates that a copy of any appropriate direction be sent to the expert. In extreme cases of disregard of an expert's duties to the court, an order for costs can be made against the expert (Phillips v Symes [2004] EWHC 2330 (Ch)). Note that the expert's duty to the court does not end with the first report. There will be further reports, questions to answer, conferences, documents to consider, expert meetings to attend and trial which require considerable commitment, including availability for conferences and further reports at short notice. Each instruction should make clear the purpose of the report, when it is needed, whether in draft or for service and which other reports will be served with it.

The legal tests for capacity, breach of duty, causation or quantum should be defined. Capacity is a contentious issue better fully explored in early conference to determine whether lack of capacity can be substantiated and to consider whether further statements, diaries or experts are needed.

The report and references should stand alone. They should be concise, pertinent and written in the first person. Explain to the expert that expert reports form the basis of pleadings and must support the pleadings, which will be weakened if amended to accommodate an expert's change of opinion.

Joint experts

Joint experts can create problems if experts need to consider privileged documents in conference. Paragraph 5 of the practice direction can be used to give reasons to the court why a joint expert is inappropriate.

The practice direction makes it clear that if there is a wide variety of opinion in any area, or where there are conflicting instructions from each side '“ for example whether a hydrotherapy pool should be considered '“ then a joint expert is inappropriate.

Do not allow unscrupulous defendants to use joint experts to force disclosure of draft reports or statements, or to limit the claim by not asking experts to consider all issues.

Expert meetings

Meetings between experts should identify and narrow the issues and reach agreement if possible. Meetings are not mandatory and lawyers are not present unless ordered by the court. Where the claimant is brain injured, meetings can be particularly difficult as opinions may rely upon subjective evidence provided by the claimant or third parties.

Statements arising from expert meetings cannot be referred to at trial unless the parties agree. However, statements from expert meetings are invariably crucial in settling claims and a carefully drafted agenda is a powerful tool in narrowing the issues and helping the experts towards agreement.

Draft agendas should be prepared by the claimant's solicitor or counsel and approved by the claimant's experts before being approved or amended. They should be concise and follow the practice direction.

Experts often complain about the length of the agendas or that problems arise because of delays in preparing draft agendas. They should have 28 days to consider the agendas and a further seven days to agree them.

A coordinated team

Careful planning should overcome many of the aforementioned problems. If each expert feels part of a cohesive team working in synergy with the other experts and the lawyers for the benefit of the client, it is more likely that there will be a successful end result.

Each expert should be thoroughly tested in conference and in unison with the other experts before drafting the letter of claim if possible, because a cogently argued letter of claim can result in early admissions even in the most complex of cases. Experts should be encouraged to raise and discuss issues as they arise with lawyers and each other over the telephone or by email if necessary.

If the matter proceeds to trial, experts should be encouraged to practise their skills before appearing in the witness box and to use models, diagrams and other aids to explain anatomy and other matters to the judge who is much more likely to remember that expert when considering judgment.

A coordinated team of lawyers and experts who respect each others' opinions and bounce ideas off each other as they move the case towards settlement is a powerful tool in optimising the prospects of a successful outcome.

Copyright & permissions