Wednesday, October 14th, 2020 posted in Expert Witness, Inspire News

Essentials for expert excellence

Medicolegal experts will find their reputation precedes them in the niche area of clinical negligence litigation.  It is important 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

An expert needs to reach a reasoned opinion, address challenges to that opinion, and communicate their 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 applying 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.  Undergoing training in report writing or courtroom skills and having a good grasp of the litigation process will really help increase an expert’s confidence.

Attention to detail

Be clear on the scope of your work and read your letter of instruction closely.  Answer the questions that you have been asked, commenting only on those areas which are within your expertise.  It is frustrating for a lawyer to receive a report which includes comments on liability or causation, for example, when the instructing solicitor 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, Particulars of Claim, and the Defence.  Most importantly, know and understand the opinion you have presented in your own report and how it fits in with the case.

Communication

 Demonstrate good communication skills from the outset.  When you receive an initial enquiry, respond as soon as possible.  Before you do, take the time to carry out a careful conflict check; confirm 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 reponse, 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 which 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, and this 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 soon as possible, along with an indication of 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.  Speak plainly and be prepared to explain any complicated concepts in a way that can be understood by non-medics.  You can hone these skills with expert witness training, and they will develop with practice too.

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 facilitate and may have cost implications.

Once you have established your opinion, stick to it.  It is possible that new facts may come to light which require you to change your position, and you would be expected to explain the reasons for this if so.

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 result in 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 do 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, be well prepared and familiar with the etiquette.  If this means you need to sit in on the trial and observe before you are due to give evidence, then do so.

Administration & Process Management

You need to have a robust system for identification of potential conflicts of interest, maintaining a current database of your instructions, keeping on top of diary management, and ensuring you contact the right people about the right matters.

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

You should keep your report in draft until it needs to be finalised.  This makes it more straightforward to incorporate revisions, rather than producing supplementary reports.  Also, have a system for naming and dating the versions of your report, so that your final version is identifiable, and you do not submit an earlier one in error.

You should have arrangements for secure storage of documents in line with your data protection obligations.  They must be destroyed or returned as appropriate and, along with any other correspondence about the case, must be sent to the proper recipient in a secure manner.

Value for money

Cost matters, and the 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 in response to feedback without further charge.  Also, 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 spend to do so.

Set out your in-person costs at the outset and be clear about your cancellation charges.  It is reasonable to seek reimbursement of expenses incurred, so be prepared to submit receipts to evidence these costs.  You should also stipulate whether your costs are subject to and, if so, whether they include, VAT.

By displaying these traits of excellence in practice, striving to work well with those instructing you, and always being mindful of your duty to the Court, your expert witness practice will command positive attention as it grows and develops.

Caren Scott at Annual Expert Witness Training Conference