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Ahead of his presentation at the Medico-Legal conference, Warren Collins, Solicitor Advocate and Personal Injury Partner at Penningtons ManchesLLP, looks at the sharp edge of expert evidence.
It shouldn’t be that difficult. Once the thorny issues of primary and comparative fault have been unravelled, personal injury claims are simply putting an accident victim back into the position he would have been had the accident not occurred. But that involves skilful lawyers with competing and opposite “crystal balls” to predict:
Comparing these two unknown tracks is fraught with difficulties and challenges. The Claimant has the burden of proving these “predictions” and the crystal ball used is made up of three (no, make that four) components:
(i) Documentary evidence;
(ii) Lay witness evidence;
(iii) Expert opinion evidence;
(iv) The lawyers’ experience and expertise.
All of these components have their part to play in litigation but in the arena of large loss personal injury claims, it is the expert evidence that is the key determinant of how much compensation the Claimant will receive. While in a clinical setting, the medic’s decisions and actions may often determinewhether the patient lives, in a medico-legal setting such decisions may inform how the Claimant lives. It is for this reason that the role of the expert witness is catastrophic injury claims is paramount.
I explain to all of my clients that medico-legal experts (whoever you are instructed by) are kind people. You all entered a profession to heal the sick and help vulnerable people. But.... (there is always a “but” when you ask a lawyer), medico-legal work is not medicine in the sense of “treating” the sick. It is a battleground where the worlds of clinical and legal practice clash. Clinical certainty is abandoned into the murky and artificial world of the balance of probabilities – and who really knows the difference between a 45% prospect and a 55% prospect of recovery when there are so many generic as well as patient-specific imponderables? Then, the lawyers demand statistics and extrapolations from academic papers in the hope that you will be able to convert a broad medical view into their world of “pounds, shillings and pence”.
And finally doctor, I know you are not supposed to “play God” but can you tell me precisely how long my client is going to live for? or put it another way, on what date is the Claimant going to die?
But this is fine. Medico-legal reporting is fun and intellectually stimulating (and for some it supplements the income of the genuinely overworked and underpaid). Unfortunately, it does not stop there. There are the challenging questions from your instructing solicitors, the fitting in of conferences with counsel around a busy clinical practice, the joint discussions and statements with equally busy clinical practitioners and the spectre of trial. Things can go wrong at every step.. and if they do go wrong, you may “get it in the neck” and I will be covering these tricks and traps at the Medico-Legal Conference in October. But it is at trial that things can get very difficult for the unprepared or unsuitable expert.
There are those lawyers that proudly proclaim that they are so good, they never go to trial. The whole legal process (based on a cards on the table approach) is designed to encourage settlement of claims. Each and every step of litigation should present itself as a chance to settle the case. These settlement triggers start at the Pre-Action Protocol letter stage, through to early full and frank disclosure of documents, the early exchange of lay witness statements, exchange of witness statements, joint discussions of experts and the system of Qualified One Way Costs Shifting. Occasionally, the whole matter ends up in front of a High Court (or County Court) judge to adjudicate. And this can be a challenge for experts.
Firstly, trials are the cause of a calendar nightmare. It is not uncommon for trials involving many experts to last a week, two or even three weeks. And while you may only be giving evidence for just half a day, your instructing solicitor (or probably their barrister), wants you to hear the evidence of other experts (or lay witnesses) and so you may be required for a few days (and occasionally, the whole trial). That would be simple enough, except trial timetables are not predictable. A trial may be expected to start on a Monday, for example, but the concept of “floating court lists” means that it could well start on the Wednesday and that puts everything out. It is likely that your instructing solicitor will have served a witness summons on you so you have no choice but to turn up for court until you are “released” or risk prison (or at least your career as an expert). What the heck does that kind of arrangement do to your clinical commitments? Are patients going to suffer at the whim of the legal system?
But you go to the huge effort of making arrangements to accommodate a trial, only to turn up to court and be told “thank you very much, but we are delighted to tell you that the case has just settled on the steps of the court”!!
Secondly, there are the horrors of giving evidence if the case does go ahead. While you may be doing your best to express a genuinely held independent medical opinion, the adversarial system is designed to discredit you and your views. The “legals” will create traps and smokescreens to capitalise on irrelevant and insignificant inconsistencies resulting in the “are you lying now or were you lying then?” type questions.
Thirdly, you have to be absolutely certain that you are a genuine expert in the precise area of contention. The GMC Guidance “Good Medical Practice” is a good starting point to assess for yourself whether you are a true expert in your field. Readers of this publication may be familiar with the problems faced by Mr Jamil, a spinal surgeon giving evidence in a clinical negligence case of Thimmaya –v- Lancashire Foundation Trust in March 2019. Poor Mr Jamil (who accepted, with hindsight, that he was not fit to give expert evidence at trial) was unable to articulate the test for breach of duty in clinical negligence cases, such that the Claimant had to abandon the case. But not only that, the expert was ordered to pay the Defendant’s legal costs. The trial judge, HHJ Claire Evans commented in her judgment “Whilst it would not be right to use him as an example to send a message to experts, it is right that experts should all understand the importance of their duties to the Court, and the potential consequences if they fail in them.”
Having read this short commentary, my question is this: Are you ready to turn cartwheels across the floor or will you skip the light fandango?
Warren Collins is a Solicitor-Advocate at the London office of Penningtons Manches LLP. He handles a broad range of catastrophic personal injury and wrongful death cases but with a special interest in cases involving brain and spinal cord injuries and a niche in Anglo-American cross-border claims. He is the current Chief Assessor of the Law Society’s Personal Injury Accreditation Scheme, a Fellow of APIL, Member of (and Assessor for) APIL’s brain injury specialist and spinal cord injury specialist accreditation panels and is listed as a leading expert in his field in Legal 500 and Chambers UK Directories. In the United States, Warren is a member of the Board of Governors of the American Association for Justice, - where he is also co-chair of AAJ’s Spinal Cord Injury Litigation Group and Vice-Chair of AAJ’s International Practice Section. He is the only UK solicitor member of The National Trial Lawyers’ Top 100, The Melvin Belli Society (pre- eminent personal injury lawyers of America) and the National Crime Victims Bar Association. He may be contacted on 07771 725542.
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