Experts' meetings are a crucial stage in litigation. No one who has completed our expert witness training should be in any doubt about their importance.
The Civil Procedure Rules indicate that the court may direct a discussion between experts (CPR 35.12) but in clinical negligence cases it normally does. Following their discussion, experts prepare a 'joint statement' for the court setting out those issues on which they agree and those on which they disagree, with a summary of their reasons for disagreeing.
Normally solicitors or counsel will prepare and agree the agenda.
The purpose of that discussion is to:
The Practice Direction adds that the aim is not to settle cases but to narrow issues; identify the extent of agreement; the points of, and reasons for, disagreement; and any action that can be taken to resolve it.
Joint statements are the last opportunity for experts to set out and explain their opinions (which they may not be able to expand on at trial). At this stage, the experts summarise their views in a document which is likely to have a real influence on the outcome of the claim.
Lawyers, like me, are generally excluded and this makes me nervous. Any report will have been carefully scrutinised by the instructing lawyer before disclosure to ensure it is clear, reflects the expert's views in conference and addresses the legal tests correctly. But, the experts are on their own when it comes to the discussion. Good preparation is essential. Many claims or defences have collapsed after an expert unwittingly made concessions, having not realised their significance, for want of good preparation. This is not the sort of task that should be squeezed in between other jobs or completed at the end of the day.
The joint statement is probably one of the first documents the judge will read. It should provide a helpful summary of the issues. So, the ideal joint statement is a clear and succinct summary, setting out the views of both experts. It should not be too long or repetitive but it should address all the key issues.
My most common complaint about joint statements is that one expert has gone into the discussion under-prepared and undone several years of work on a case with careless comments. Judges probably do not see that – those cases are unlikely to reach trial. The most common recent complaint from judges is that joint statements can be unhelpful where the agendas are poor. Here, the lawyers at fault.
In two cases, Mrs Justice Yip voices criticism of agendas. In the first1, the solicitors had been unable to agree a common agenda and produced two instead. The questions were repetitive. The joint statement was too long at 60 pages. The statement failed to fulfil its purpose of narrowing the issues. Mrs Justice Yip wanted to see a document which enabled her to understand the key issues and each expert's position on those issues. The result in this case was a document that served only to confuse.
Her guidance to solicitors was: “Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground. Frankly, the approach to the joint statement in this case achieved nothing of value.”
In a second case2, Mrs Justice Yip was again critical of a joint statement where the parties had not agreed a single agenda. In fact, having disagreed on the drafting, they had followed a (model) directions order from the Royal Courts of Justice. This order provided that, in default of agreement, the experts could consider two agendas. She disapproved of that order. “In the vast majority of cases, any disagreement ought to be capable of resolution through a bit of give and take.”
Mrs Justice Yip is absolutely right – any disagreement ought to be capable of resolution. Agendas should be drafted in a neutral way. They should not be a tactical attempt to trip up the other side's expert – a way of leading the experts to a prejudged conclusion or an early form of cross-examination. However, my own experience is that agreeing agendas can be difficult. I quite often find that, having sent solicitors on the opposing side a draft agenda, they instruct counsel, who produces an entirely new one and then seem unwilling to agree any change. The court can resolve any dispute over agendas, but a lot of time and cost can be wasted trying to resolve disagreements and the cost of making an application is likely is be disproportionate.
In a more recent case3, Master Cook was critical of two agendas he described as 'overly lawyered'. One contained 34 questions, “many of which had numerous sub-clauses and in places descended into cross-examination”. A second asked many questions “which were nothing more than a cross-examination” or “attempts to advance the arguments on behalf of the parties' respective positions”.
Of the 41 questions posed, only two were of assistance to him in understanding the issues on which the experts disagreed and the reasons for their disagreement. Master Cook went on to say that the joint statement “is for the benefit of the court and should not be a proving ground for the parties' respective cases”.
There are different views about how detailed questions should be. Some prefer fewer, more general questions. I prefer to be quite specific and sometimes include sub-clauses to ensure that experts address all the issues and don’t overlook anything.
A good tip for getting this right is to keep going back to CPR Part 35.12 and its Practice Direction and remind yourself of the purpose of the experts' meetings.