Feeling the effects of CPR

Fifteen years have passed since the implementation of the Civil Procedure Rules in 1999, with the courts, lawyers and experts getting to grips with the various changes and their implications.

The background was that a number of principles intended to ensure access to justice, which was just, fair, appropriate and effective were operationalised. In particular, Part 35 – Experts and Assessors addressed the responsibilities and actions of experts and how they could contribute to the above principles.

In July 2014, we, in conjunction with the Expert Witness Institute, surveyed a small number of experienced experts (21) to ascertain their views and experience of the CPR changes, the results and implications of which are discussed below.

1. Do you think the implementation of CPR has led to improved access to expert evidence (fairness, cheaper, quicker, easier to understand)?

Yes: 50%; No: 50%

A mixed response, as might be expected, especially given the generality of the question. The proportion of experts who thought changes had not been positive were partly experts who had not had a great experience of medico-legal work before 1999.

2. Have experts been more focused on restricting evidence to ‘what is reasonably required to help resolve proceedings’?

Yes: 60%; No: 40%

More focused questions on narrower issues referred to experts. Personal practice has improved, but restricting evidence can be a double-edged sword – only pursuing information needed may lead to complacency, incompleteness and reduce thoroughness. However, it was felt that greater brevity from lawyers results in more useful, focused answers from experts.

3. Are experts restricting their evidence to evidence which is ‘within their expertise’?

Yes: 60%; No: 40%

It was widely thought that experts already restricted their evidence to that which was ‘within their expertise’. However, the encouragement to maximise this was thought helpful. One particular example of how orthopaedic and psychological/psychiatric experts address chronic pain was mentioned. In this area, both professions attempt to explain ‘functional overlay’ and have a view on each other’s explanations.

4. Is the process of making written questions to experts working?

Yes: 60%; No: 40%

It was felt that this was under-utilised and should be given higher priority. Use of written questions clearly depends on the size and complexity of the case and also the conciseness of the lawyer.

5. Is the process of getting answers to written questions from experts working (timely, helpful, accurate)?

Yes: 50%; No: 50%

A variable response. It was thought that high-quality experts do and should provide timely and succinct responses to sensible, concise questions from lawyers, both claimant and defendant. This was compared and contrasted with the usefulness of a further examination. There were advantages in both.

6. Are single joint experts being used frequently enough, as was envisaged?

Yes: 10%; No: 90%

Responses indicated that single joint expert (SJE) instructions are not as frequent as initial CPR recommendations predicted, although experts had a largely positive view of this mechanism. Low frequency predicted low opportunity to develop the necessary skills of being a SJE. Many experts surveyed had had little or no experience of a SJE instruction.

7. Does the content of reports reflect increased independence of experts and increased responsibility to the court?

Yes: 40%; No: 60%

Experts were ambivalent about responding to this general, but crucial, question in case, maybe, it reflected negatively on their pre-1999 practice. Experts believed they are ‘responsible’ and ‘independent’.

8. Do reports adequately reflect the range of opinion?

Yes: 20%; No: 80%

It is thought that no real change has occurred here. One issue raised was whether a range of opinion should be made explicit in the expert’s report or, alternatively, made clear that the final opinion given has arisen from an implicit consideration of alternative views.

9. Does the joint opinion process work (clarifying different opinions, maximising apparent agreement, helping resolution)?

Yes: 60%; No: 40%

It was widely acknowledged that, since 1999, experts have improved in the quality and robustness of their opinion forming and this is reflected in the greater effectiveness of the joint opinion process. Inadequate pre-meeting agenda and focus of discussion reduces the utility of their joint opinion process.

Professional expertise

Fifteen years on, the jury is still out on the outcome of the CPR changes. The issue of what evidence is required in reports (individuals, single joint experts), follow-up questions and Part 35 questions and, ultimately, where appropriate, joint opinions, points to the need for a greater emphasis and understanding of which areas of evidence are inherently unreliable.

Current research is addressing this issue in one of the frontline specialties, psychology/psychiatry, which will result in experts ‘honing’ their way of assessing injuries differently. This will help both lawyers and experts ask and answer questions with greater specificity and clarity.

Following this, with these two specialties, greater clarity in areas such as chronic pain, functional overlay and abnormal illness behaviour will ‘help’ experts to not only stay within their own expertise, but also recommend the appropriate additional specialty report where appropriate.

The prevailing adversarial culture supports the use of experts reports on ‘both sides’ and is wary of the SJE concept and practice. However, it is likely that SJE opportunities will eventually increase in certain cases, alongside greater explicit understanding of the areas of unreliability alluded to above.

The general view in the survey was that ranges of opinion are more implicit than explicit in expert evidence. Many experts believe that to explicitly describe the possible range of opinion and then decide what, in their opinion, is the most logical opinion/choice is pedantic and repetitive. The judge and counsel in any one particular case may well see this issue differently.

More training and professional development opportunities are needed for legal professionals to improve knowledge and understanding of psychological injury.

Such CPD activity should focus on:

• Clinical issues: understanding diagnostic, attribution and prognosis issues.
• Reliability issues: consistency between data types; assessing truthfulness; reasons and motivation to exaggerate.
• Expert issues: independence and impartiality of experts; communication with experts; obtaining opinion clarification.
• Quality management issues: effective communication between legal, medical, claimant and defendant; refining and improving medico-legal processes; improving quality and monitoring time and costs.

The term ‘psychological’ has two separate but linked meanings and contexts within civil litigation post CPR. First, it applies to a significant part of ‘personal injuries’ for which claimants in the UK and US bring their case for compensation.

Second, it applies to how lawyers understand injuries, and how they conduct their relationships with several different ‘clients’ or ‘customers’, both internal and external and how specifically they understand the way expert witnesses operate and provide impartial opinions.

The provision of training or CPD activitiesfor lawyers is seen as crucial to the continuing development of civil litigation procedure and credibility. SJ

Dr Hugh Koch, pictured, is a chartered psychologist and the director of Hugh Koch Associates. Dr Ben Laskey, Dr Kavita Misra and Dr Caroline Formby are all chartered psychologists at Hugh Koch Associates