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The truth about working with lawyers…

  • Published: October 23, 2020
  • Author: Sarah Sellars, Consultant, Inspire MediLaw

Good communication. Clear instructions. Prompt payment. Plenty of notice of deadlines and Court dates. Acknowledgement of work done. Constructive feedback. Is this how you would characterise your experience of working with lawyers? Understanding what is involved in complex clinical negligence case management can help improve communication between experts and lawyers. In this blog, we'll be taking you through the key elements.

The solicitor's initial approach

The solicitor must establish whether you are the right expert to instruct but may not have the clinical knowledge to get this right. It is up to you to accept or turn down their approach, based on whether the issues fall within your area of clinical expertise. You should mention all possible conflicts of interest at this stage.

If you are asked for a fixed-fee desktop report, ensure you know the scope of the instructions and the volume of the documentation. This will avoid you committing to reviewing reams of records at a low hourly rate. In your report, set out the scope of your instructions, outline the work you completed to reach your conclusions, and what further work you think is necessary (if any) to produce a full report.

With requests for an informal opinion, it is a good idea to call the solicitor to discuss the case and, if you feel comfortable doing so, share your thoughts on the relevant clinical issues and the expertise needed.

As a rule of thumb, do not produce a report that cannot be disclosed to the Court. There are sometimes circumstances where reports are used improperly by solicitors, either accidentally or otherwise. Your priority, when considering these requests, is to protect your professional reputation.

Instructions in clinical negligence cases

The solicitor may seek your clinical opinion on breach of duty or causation. He or she needs you to commit to a well-reasoned view to enable them to bring or defend a claim. He or she may instruct you to report on the patient's condition and prognosis to quantify the claim.

The solicitor's letter of instruction should outline the key dates and events, key people, and allegations of negligence. It should state what type of report you are to prepare, the legal tests you must apply, and be accompanied by a full, collated set of medical records, a chronology of events, and relevant witness statements.

On receipt of the instructions, you should confirm the due date for your report, reiterate the cost estimate, and raise any queries now that you have seen the documentation.

This sets the tone for your working relationship during the case, and you must confirm your expected timescales and costs with the solicitor. A claimant solicitor will be mindful of the limitation date, after which they are not permitted to issue the claim. The defendant solicitor may be working towards a deadline for a Letter of Response or submission of their defence.

Progressing the clinical negligence case 

While waiting for your report, there is usually little that the solicitor can do to progress the case.

With this sudden period of inactivity, the client can feel anxious that there is no progress. The solicitor can only reassure them and hope you will meet your deadline! He or she may be waiting to hear from you before instructing the next expert. In a claimant's case, where either breach of duty or causation does not appear clear cut, this is common practice to manage costs wisely.

The solicitor may also be liaising with you, other experts, the client, and a barrister's clerk to set up a Conference with Counsel to discuss the medical evidence, including your report.

For these reasons, if there will be any delay to your report or you make unexpected findings, you should inform the solicitor as soon as you can.

The Conference with Counsel 

Your report will be circulated to the other experts instructed by the solicitor and discussed with the client. Be sensitive to that, particularly if you report for the claimant's investigation, and ensure your report can be understood by a layperson.

The conference is chaired by the barrister instructed in the case, and the client is also likely to be present. This meeting determines whether the case can carry on or be discontinued, so it is crucial.  The solicitor relies on you to understand the issues, put forward your reasoned opinion, and give a considered response to the views of other experts or the legal team.

You may be asked to make changes to the wording or structure of your report. You should not be asked to make material changes that you disagree with. Your report is your opinion, not that of the client or the lawyers.  It is you who must explain it in Court.

Moving on to the Court timetable 

Following a positive conference, the parties and the Court fix a timetable to manage the case to trial. Your solicitor should send you the timetable, which includes deadlines for finalising and exchanging expert evidence, experts' meetings and joint statements. Put these deadlines into your diary.

As the case progresses to trial, the solicitor will be working with all experts in the case on:

  • finalising reports
  • checking (and rechecking!) all evidence before it is disclosed to the other side
  • evaluating evidence received
  • circulating evidence to experts and the barrister for comment
  • drafting agendas for the expert meetings
  • keeping an account of costs
  • reporting to the funder regularly
  • talking the client through every stage.  

They may also be negotiating with the other side in an attempt to settle the case.

Be aware that the solicitor instructing you is likely to be running a caseload of 60 or more files, all at different stages of the investigative or litigation process. You might be asked to respond to a query or attend a phone conference at short notice, and it is helpful to have some flexibility to do so, being mindful of the deadlines involved.

Payment

Your expert witness practice is a business, and you are entitled to be paid for your work. Ensure you have an agreement on your costs, cancellation charges, and payment terms at the outset. If you do not receive payment in line with your agreed terms, raise this with your instructing solicitor.

If you need to escalate this, contact the solicitor's supervising partner or head of the department. You may wish to instruct a credit control company to take the matter further if necessary. But tackle the issue with your usual contact before escalating, as there may be a simple administrative reason for the oversight, which can be resolved easily.

The conclusion of the clinical negligence case

Whether it settles, discontinues, or goes all the way to trial, the case will conclude. It is not always possible for your solicitor to share the details, so you may not hear much beyond the outcome. Do ask for feedback or comments on your role. This is a useful learning opportunity and, potentially, a testimonial for you to add to your CV or website.

If all goes quiet, you can ask for an update. For your own data audit and compliance with the applicable data protection laws, you will probably be checking the status of any quiet cases at least once a year.

Be aware of the competing pressures your instructing solicitor is juggling, and expect a similar level of understanding in return. Maintaining good lines of communication always contributes to a positive working relationship.

If you enjoyed reading this article, take a look at Sarah's recent article, 'Essentials for expert witness excellence'.

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