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Preparation of an expert is expert preparation

Nicola Wainwright considers the potential pitfalls in the expert and solicitor relationship

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    Nicola Wainwright is a partner in Leigh Day's clinical negligence team. She deals with a wide range of claims involving different types of negligence and injuries. Follow Nicola on Twitter @NicWwright
    In SJ 159/17, former dental expert witness Michael Young gave excellent advice on nurturing relationships between solicitors and expert witnesses through teamwork and communication, in his article ‘Getting the best from your expert’.

    However, sometimes, despite everyone’s best intentions, communication breaks down, and this article examines in further detail some potential pitfalls that are best dealt with at the outset of your case.
    It is easy to assume an expert has considered every issue that concerns us as lawyers, but we have legal experience and expertise, which should enable us to predict the approach of the court and our opponents and so anticipate how matters can go wrong. Of course, the most experienced experts will be well versed in these matters too, but why assume our expert understands what we need from them only to find out too late they do not?

    Conflicts of interest

    Before instructing an expert, consider with them any potential conflict of interest.  In the recent case of EXP v Barker [2015] EWHC 1289 (QB), the judge came close to ruling the expert’s evidence inadmissible when he failed to disclose before trial that he and the defendant doctor had worked together. Therefore, before instructing an expert, ask them outright if there is a potential conflict.
    As for the expert, if in doubt, it is best to declare any relationship that could give rise to a conflict. Then there is at least the possibility of dealing with it, for example, by checking that your client and/or the defendant do not object to that expert’s involvement, before it damages the case.

    It is also worth making clear at the outset that the expert must be prepared to give evidence at trial. This may seem obvious but I have had experts agree to prepare medico-legal reports but then express unwillingness to attend trial.  It is easy to assume that most cases will settle but obviously this is not true of all claims and, to avoid later misunderstandings, solicitor and expert should acknowledge this at the beginning.

    Ensuring experts understand that the role includes giving expert evidence and being cross-examined, including making sure they know they will need to make themselves available for trial despite busy diaries, can avoid later confusions.  This includes taking time to make sure both parties are clear about the experts’ terms (including cancellation fees) relating to attendance at trial.

    Time limits

    Given the court’s approach to time limits post-Mitchell, ask your expert for their realistic time frames and non-availability before the court timetable is set. It is crucial to make any deadlines clear to the expert at the beginning and agree the steps necessary to enable them to meet, for example, the deadline date by which the expert needs the papers.

    Many experts are used to the movable timeframes of the old days, even if they found it frustrating to be told a piece of work was needed urgently, only to find the deadline was, in fact, extendable. Making clear to your expert that life is not as flexible as it was, and the consequences of failing to comply, should help everyone meet court deadlines. Do ask your expert to tell you as soon as possible if delay is unavoidable so you can make the necessary application for an extension well before any deadline expires.

    Finally, go through the case and evidence thoroughly again before expert discussions. It is hard for solicitors to let go and leave our experts to discuss the case with their counter-parts without our involvement.  These discussions come late in proceedings when time, money, and clients’ hopes and expectation are already heavily invested. The consequences of a change of opinion by the expert can be devastating.

    It is worth making clear to the expert how important these discussions are. This is not to say that, faced with a persuasive argument by their opponent, they have not considered before that an expert should ignore that point of view. Rather, with proper preparation by both solicitor and expert, a change of opinion should occur in the course of discussions with your own legal team rather than during expert discussion.

    A thorough examination of all issues and your opponent’s evidence should take place in advance of the experts’ discussion so any potential problems can be identified. If the expert’s view has or may change as a result of the other side’s evidence, the solicitor can be alerted to this and deal with it before discussions take place.

    In summary, by identifying where problems may arise in advance you and your expert can hopefully avoid obvious pitfalls together.

     

    This article was first published by Solicitors Journal on 08/09/2015, and is reproduced by kind permission. www.solicitorsjournal.com



     

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