Mon, 28 May 2018
Dr Simon Fox QC gives his top ten tips for instructing experts:
Less is more.
I generally see too many experts instructed in a case rather than too few. Identify the key issues in the case and limit your experts to those areas. Peripheral issues may fall away. Many quantum reports beyond the key ones can be the subject of a joint instruction with your opponent. We are only going to see further pressure limiting the amount of expert evidence, including on costs.
Spend some time considering precisely which specialism you need and who will best provide the opinion.
This will include identifying the key issues correctly and the setting in which they played out; causation may involve more than one expert area; a nationally recognised expert from a London teaching hospital may be perfect on causation but may not be best to address the standard of care in a small district general hospital.
Point them in the right direction.
Many experts are very expert in their particular field of medicine but very poor at the more forensic aspect of the expert witness’s role. Let them know the specific areas which you have identified as raising concern in the case. In addition though, always make it clear that you don’t want them to limit their assessment of the case to these areas and they should draw your attention to other areas of the case over which they have concerns which you have not identified.
Tell them the correct legal test to apply.
This is key.
I cannot remember the last time an expert referred to the correct Bolam test in a report, let alone that for material contribution.
My favourite expert interpretation of Bolam is -
“It is my opinion that the failure to manage the patient in this way could be considered negligent by a body of experts”.
Almost every component of that test is wrong!
If these find their way into a report used at trial, the other side will tangle the expert up in knots all day long.
- spell the correct tests out for them, and
- ask them to set them out at the start of their report as the tests they have been asked to address in giving their opinion.
Identify the appropriate legal tests for that particular case.
The law in clinical negligence is not as straight forward as it used to be. It’s no longer just Bolam for breach and But For for causation. Different cases have different tests for both issues.
a) Consent – Montgomery;
b) Pure treatment case – Bolam;
c) Pure diagnosis/error case – Muller;
d) Histology – Penney;
e) Advice – Montgomery;
f) Causation – but for;
g) Many cases – material contribution.
It is important to identify the correct breach and causation tests for each case.
Explain that their first report will be a draft advisory document, not for disclosure and should be described as such.
Provide them with a core bundle of records
In my experience the more records you send an expert, the less the chance that they will read all of them and the greater the chance that they will miss a key entry.
Send them all the records but also send them a core bundle of what you consider to be the important documents. This increases the chance that they will read those properly and also ensures that they are able to access others which they may consider relevant.
Make sure they differentiate between issues of fact and expert opinion.
This is a common error made by experts. They need to understand the difference and be alert to making assumptions of the facts upon which they base their conclusions. Otherwise it’s another source of cross examination material.
Tell them to give reasons, reasons, reasons.
At trial examination in chief will very likely be limited simply to confirmation of their report and their contribution to the joint statement. There is no point them coming up with a great reason to support their opinion in the pre trial conference which is not in their report. As far as expert opinions and reports are concerned – “It’s got to be in it to win it” and “Points mean prizes”.
Of course I would say that, but counsel are a valuable resource to assist you on many of the above, especially (5) – identifying the appropriate legal tests for the facts of the particular case. In addition, they will have a decent database of expert’s names which you can draw on in addition to your own. And if the expert still turns out to be no good, they can’t blame you.
Dr Simon Fox QC is a member of the Clinical Negligence group at No5. He is a medically qualified silk specializing in clinical negligence and personal injury cases involving complex medical issues.