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Essentials for expert witness excellence

  • Published: October 14, 2020
  • Author: Sarah Sellars, Consultant, Inspire MediLaw

As a medico-legal expert, you will find that your reputation precedes you in the niche area of clinical negligence litigation. It is vital to ensure that the professionals in this sector have positive things to say about you!

Lawyers look for a range of characteristics in an expert. Some come naturally, others need to be worked at.

Confidence in medico-legal practice

As an expert witness, you need to be able to reach a reasoned opinion, address challenges to that opinion, and communicate your opinion clearly and confidently. This is not the same as coming to a conclusion and sticking to it, despite clear evidence to the contrary. Rather, it is having the confidence to apply your knowledge and practical experience to a scenario, back this up with research and data, take into consideration other views and arguments, and show why you have discounted them.

Being able to do this in writing and in person requires confidence. Completing training in report writing or courtroom skills and having a good grasp of the litigation process will really help increase your confidence. And we offer a variety of training to help you as an expert witness.

Attention to detail

Be clear on the scope of your work and read your letter of instruction closely. Answer the questions you have been asked, commenting only on those areas within your expertise. For example, it is frustrating for a lawyer to receive a report that includes comments on liability or causation when the instructing solicitor had clearly asked for a condition and prognosis report.

You must become familiar with the documents in the case, including the medical records, witness statements, expert reports, and the Particulars of Claim and Defence. Most importantly, be clear on and understand the opinion you have presented in your own report and how it fits in with the case.

Communication in expert witness work

Demonstrate good communication skills from the outset. When you receive an initial enquiry, respond as quickly as possible. Before you do, take the time to carry out a careful check for any conflicts of interest. Confirm that the issues fall within your specific field of expertise and check your diary to ensure you give a reasonable estimate for producing your report. In your response, include confirmation of your fee and payment terms.

When you receive full instructions, call or email the solicitor to confirm receipt, and raise any questions you may have. As you work on the case, telephone or email your instructing solicitor to raise issues that you think have been overlooked, rather than simply mentioning them in your report. When writing your report, remember that it will be read by the claimant and others involved, which is likely to be difficult for one or more of them. Use appropriate language, and include a glossary if you cannot avoid complex terminology in some places.

In litigation, especially as trial approaches, time is of the essence. It is important that your instructing solicitor knows you are accessible. This does not mean that you must drop everything to answer the phone. It does mean you should acknowledge emails or phone calls as quickly as possible and indicate when you expect to provide a full response.

In Court, be calm, speak plainly, and be respectful of those whose opinion differs from yours. If your reasoning is compelling and well presented, both in your report and when you speak, this will carry a lot of weight. Remember that you are giving evidence to a judge who may not have a detailed understanding of clinical terms. Use plain English and be prepared to explain any complicated concepts in a way that non-medics can understand. You can hone these skills with expert witness training.

Reliability

Provide what you say you will, when you say you will. It's simple, but it matters. Lawyers will remember if an expert asked for a long extension at short notice, for example. This can be professionally embarrassing for the lawyer to arrange and it may have cost implications.

Once you have established your opinion, stick to it. It is possible that new facts may come to light which means that you have to change your position. In this scenario, you would be expected to explain the reasons.

On the flip side, do not try to be over helpful and give hope to a claimant or defendant where such a position cannot be supported. This is not in anyone's interests, and will lead to difficulties for you and those instructing you further down the line.

In general, do not put yourself in a position where you have to change your mind later. Make sure you undertake detailed work at the outset to ensure you have got the answer right.

It goes without saying that you must uphold professional standards, both as a clinician and as an expert witness. Attend conferences, expert meetings and Court when you are expected, and be well prepared and familiar with the etiquette. If this means you need to sit in on the trial and observe proceedings before you are due to give evidence, then do so.

Admin and process management

You need to have a robust system to identify any potential conflicts of interest. Maintain a current database of your instructions, keep on top of diary management, and ensure you contact the right people about the right matters.

Solicitors will expect to hear back from you in a timely way so, if you do not have a secretary, you should have a process for keeping up with emails and phone messages.

You should keep your report in draft until it needs to be finalised. This makes it easier to incorporate revisions rather than producing supplementary reports. Have a system for naming and dating the different versions of your report, so that your final version is identifiable. This will reduce the risk of you submitting an earlier one in error.

You should have arrangements for storing documents securely in line with your data protection obligations. These documents must be destroyed or returned as appropriate. Along with any other correspondence about the case, these documents must be sent to the proper recipient securely.

Value for money in medico-legal practice

Cost matters, and solicitors are required to keep litigation costs under control. Ensure you charge a fair amount for your time and expertise: do not undersell yourself. However, be reasonable about how you calculate costs.

For example, a cost estimate for your initial report should include a buffer so that you can make basic textual or formatting amendments following feedback, without further charge. Furthermore, if your report does not address the questions set out in your letter of instruction, a solicitor will not be prepared to pay you for the additional time you need to spend correcting this.

Set out your costs at the outset and be clear about your cancellation charges. It is reasonable to seek payment for expenses, so be prepared to submit receipts as evidence for these costs. You should also indicate whether your costs are subject to VAT – and, if so, whether this is included.

By displaying these traits, striving to work well with those instructing you, and always being mindful of your duty to the Court, you will start to build a strong reputation in the medico-legal sector.

Learn more about our expert witness training and take a look at Sarah's blog, 'Why become a medical expert witness?'

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