Expert witness | Preserving independence
There should be no distinction between the evidence provided by experts on either the side of the claimant or defendant, says Gerard McDermott QC
Expert evidence is an essential tool in every personal injury claim from the most modest whiplash to complex claims involving catastrophic injury.
More than 12 years after the Woolf reforms were implemented it is evident that not all the lessons have been learnt about the role and use of expert witnesses.
It goes without saying that expert evidence should be completely independent and uninfluenced by the pressures of litigation. In the run up to a substantial case there may be a number of meetings with the key experts in a case and it is of course important that lawyers and experts can work together to achieve the right result. However it is always important for both lawyer and experts to remember their distinct roles.
The lawyer’s role is to advance the client’s case to produce the best possible result within the context of the individual piece of litigation. In order to achieve this it will generally be necessary to adduce evidence from experts in the relevant field to show what impact the injuries have had, what the prognosis is, and what will be required in order to attempt to put the claimant back in the position that he or she would have been but for the accident. In terms of liability it may be the expert’s role to try and reconstruct how an accident happened or to advise on good practice within any particular industrial or other setting. However it is always vital to ensure that the distinction is not blurred. Cases are decided on the evidence, and while it may be disappointing to find that an expert’s view has shifted by reason of persuasive points made by an expert instructed on the other side or by the emergence of new documents or records, it is the lawyer’s function to work with the evidence as it is – far better to know the weaknesses in one’s case well before a trial than have them emerge for the first time at trial. It is also important that in the course of conferences and the like that both expert and lawyer remember that while the expert is instructed by one party or another he or she should not be regarded as part of that party’s “team”.
Their function is not to advance the case of the instructing party but rather to provide the evidence that may be deployed by the lawyers to advance the party’s case. That is a clear and important difference.
For this reason when, on occasions, I am asked to give the name of a good claimant or defendant expert I always respond by observing that I know of reliable experts in particular fields but I am not prepared to recommend a claimant or defendant expert. The importance of this cannot be overemphasised. If an expert has a reputation that is respected by all parties to litigation then the possibility of achieving a satisfactory and acceptable result for all are much enhanced.
Clear and concise
All experts should periodically review CPR 35 to remind themselves of their function in litigation. But more than that, the quality of their evidence and of their reports may be improved and enhanced if they always ask themselves who their report is for. It is of course for the court. They may be instructed and paid by one party but it is the court they are intended to assist and equip with the knowledge the judge needs to fairly determine the case.
With this in mind one vital thing that experts need to keep at the forefront of their minds is to keep their reports clear, concise and readable. Simply dictating long extracts from copious medical records and putting them in the body of the report is rarely going to help the court. What a judge wants is a clear report setting out any necessary background, identifying the issues the expert proposes to deal with and then giving the expert’s reasoned opinion on the issues. This may be as to the cause of an accident, its consequences, what care and support is required or any other issue in dispute.
In many of the more complex cases they are made yet more complex by the unnecessary repetition of detail in the way noted above. Insofar as is necessary
detailed analysis of reports, statements and the like can be set out in an appendix, but it cannot be overemphasised that the judges and courts will be most assisted by clear and concise reports which are also well structured.
True expertise
Obviously experts should give opinions about matters that lie within their expertise. Comment from engineers and others as to the quality of witness evidence in an RTA is not part of their function and will not endear them to the court. Of course it is permissible to give opinions based on clearly set out assumptions but it is simply not the expert’s function to determine facts – though it may be part of their function to provide scientific or mathematical calculations or information which can be deployed to show that any particular factual assertion is unlikely to be correct.
The use of expert evidence has grown, sometimes unnecessarily, in recent years. If an “employment expert” has real experience of a particular job market then it may be appropriate to call on that expertise in order to assist the court in judging what a claimant’s career path and likely earnings might be, but producing information as to what the various ONS figures are for any particular category of employee may not strictly be expert evidence.
Likewise, by way of example, there has been a tendency in some cases to produce expert reports on the suitability of different vehicles and the like for a disabled person. While this may be justified in some instances this should, in my view, generally be dealt with by the expert appointed to deal with aids and equipment. What may be required is evidence as to the cost of vehicles and the like together with information about depreciation and so on (arguably this latter item may be expert evidence, but the extent to which it requires a full expert report is, at least, debatable).
A collaborative way
Proper coverage of this topic would merit a whole article to itself and the landscape may change if the concept of hot tubbing (the idea that experts give evidence to the court together) gains ground. However even a short article would not be complete without some reference to this aspect of expert evidence.
The idea of experts meeting to discuss a case is to assist in narrowing the issues – thus facilitating settlement or abbreviating the time required at trial. Proper conduct of such meetings requires that the experts are left to the meetings. While in the early days there were some instances of lawyers attending or seeking to attend such meetings, that is in my experience thankfully rare. Experts need to remember when embarking on these meetings that they are an important part of the dispute resolution process and they need to set aside sufficient protected time both to prepare for and to undertake such meetings, and also to prepare accurate (and concise) joint statements as a result. If they are effectively undertaken, even in a complex case, it should often be possible to take a judge only to the joint statements in opening the expert evidence, in order to identify the areas in dispute.
The purpose of these meetings is not to conduct them in an adversarial manner seeking to hold whatever line has thus far been taken in an expert’s evidence, but rather in a collaborative way aimed at identifying areas where, after discussion, the experts are in fact able to agree on matters previously in dispute and also areas where their opinions or recommendations still differ. But nor are they intended to settle the case or areas of significant difference where there is a principled difference between the experts not to try and resolve disputed areas of fact.
If after an experts meeting an expert has shifted somewhat then, unless there is some identifiable flaw in the reasoning used to come to a joint view or where there is new evidence, as lawyers, we need to remember that a shift in opinion will generally represent a proper analysis of the available evidence taking into account any opposing view or range of opinion and – as we must always remember – cases are decided on the evidence.