Where does the expert witness fit into the litigation process

  • Published: February 11, 2021
  • Author: Sarah Sellars, Consultant, Inspire MediLaw

In clinical negligence work, the experience of each expert witness will differ slightly. It depends on, among other things, the complexity of the case, the number of experts involved, whether the case is discontinued, settled or proceeds to Court.

The instruction and initial report

The claimant instructs experts for an initial investigation, usually some time before the defendant instructs experts. Remember this when checking for any conflicts of interest, as you could receive instructions from a defendant some years after reporting for the claimant.

The solicitor should provide you with a letter of instruction setting out whether you are to comment on breach of duty, causation, or the current condition and prognosis of the claimant. They should state the legal tests you need to apply when considering your opinion.  

You must ensure that the work falls within your area of expertise and, if not, say so. It is better to turn down instructions or clarify exactly what you can comment on at this stage rather than be embarrassed further down the line.

The instructions should come with a set of collated medical records and an outline of the relevant chronology. There may also be factual witness statements from the claimant or others. If you are instructed by the defendant, you should receive a copy of the allegations as set out by the claimant in their Letter of Claim or the Particulars of Claim.

Based on these documents, your own expertise, and any independent research required, you will then draft your report. Ensure you apply the legal tests and address any specific questions you have been asked.  

It is really important to provide your report within the timeframe you have indicated or, if that is not possible, give your instructing solicitor plenty of notice of any delay. They are likely to be working to a specific timetable.

If your report is clearly supportive of the claim or defence, you may not initially hear much by way of a response. If you raise particular issues, or your report is not supportive, you are likely to hear from the solicitor fairly quickly, with a request to tease out these issues. 

You may also be asked about your availability for a Conference with Counsel, either in person or by telephone.

Conference with Counsel

This will be the next big date in your diary in any major case. The solicitor instructs a barrister, experienced in clinical negligence cases, to critically assess the evidence: the records, the witness statements, and the experts’ reports. You will be expected to attend either in person or remotely. If it is possible to attend in person, do so. It makes such a difference to be physically present in the room with the others involved in the case and makes communication clearer too.

In preparation for the conference, read your report and know it well. Read any other reports or papers you have been sent and consider how they sit alongside your report. If there are points of disparity, be prepared to talk about this and suggest reasons or ways to overcome it.

Many experts find the conference exhilarating, relishing the academic challenge of a discussion with other professionals at the top of their game. Be mindful of the others present. They may include the claimant or a healthcare professional who has had allegations of negligence made against them. It is likely to be upsetting for them to hear details of their own lives discussed dispassionately in front of them.

After the conference, you may be asked to make some presentational amendments to your report to finalise it for service on the other side. You should not be asked to change your opinion unless your opinion has actually changed.

Commenting on opposition reports

When your solicitor receives the report of your opposition expert, they should send it to you for comment. Consider it objectively, identifying areas where you agree and giving reasons for the instances where you disagree. 

Be methodical. Your solicitor will need a well-thought-through response from you to inform their advice to their client, their case plan, and any negotiation which may take place.

Meeting of Experts

After the case has been issued, it follows a timetable ordered by the Court. During this period, you will meet with your opposite number to address an agenda of questions. The aim of the meeting is to narrow the issues in dispute and to produce a joint statement.

The agenda will be drawn up by the solicitors: sometimes into one agreed list, sometimes two separate ones. There will be no solicitors present at the meeting; it is entirely between you and the other expert. Do not set aside your professional obligations. You must not mention anything you know about the progress or strategy of the case to the other expert.  

You should review the agenda before the meeting. Consider your answer to each question, and make a note. Regardless of whether you meet in person or by video/audio call, you must treat this as a work commitment. Do not be rushed or distracted by external domestic or professional events, and be sure to give it your full attention.

Taking a good note of your discussion is really important, even if you are not the scribe for the meeting. The joint statement must accurately represent and explain your position, regardless of whether you agree or disagree with the other expert. Use your notes when you review the joint statement and be absolutely sure that you fully agree with the answers attributed to you before you sign the document.    

Giving Evidence in Court

Some clinical negligence cases do get this far. Always work on the basis that yours might reach Court. If asked, could you explain your opinion clearly to the judge and, if challenged, could you respond calmly and objectively?

The best advice is to prepare, prepare, prepare. Read your report, the report of your opposite number and your joint statement. Be familiar with the medical records and the Court documents, including the Particulars of Claim, Defence, Schedule of Loss, and witness statements.  

Try to be in Court for as much of the trial as possible so that you can observe the Court etiquette and perhaps see others taking the stand before you do. It will give you an insight into how the barristers put their questions and hopefully help you feel more confident about what to do when it is your turn!

When it is your turn, stay calm. Listen to what you have been asked, answer concerning your report, where possible, and state clearly if you think you are being asked to answer something that falls outside of your area of expertise. Do not make submissions, but do give your opinion. Your role is to inform the Court to the best of your ability, enabling the judge to come to a decision.  

As the expert witness, your duty is to the Court, and good practice in discharging this duty is essential. As the expert, you are integral to identifying, narrowing and explaining the key issues in a case so that justice can be done.  

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