The expert meeting: review of survey data provided by lawyers and medicolegal experts

Clin Risk 2008;14:109-112
doi:10.1258/cr.2008.080022
© 2008 Royal Society of Medicine

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The expert meeting: review of survey data provided by lawyers and medicolegal experts

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Fiona Freedland




Abstract

Top

Abstract
Introduction

Analysis of responses from…

Are expert meetings necessary…

Drafting the agenda

Accountability

Telephone meetings

Improvements to the process…

Summary and conclusions

 

AvMA undertook the survey in order to examine whether Rule 35 of the Civil Procedure Rules that governs expert meetings was operating effectively. The survey was initially restricted to Claimant lawyers as this is the group that AvMA has most contact and dealings with. However, the survey was subsequently expanded to include some Defendant lawyers as well as medicolegal experts themselves. The scope of the study was to look at issues arising from the expert meeting. Although the survey referred to the expert ‘meeting’, in practice, many discussions between experts take place without the experts meeting at all. The term ‘expert meeting’ was to encompass all forms of discussions between experts. This paper presents a review of the survey returns with particular emphasis placed on problems encountered in the context of the expert meeting. The level of response to the survey from Claimant lawyers was higher than AvMA expected. The response to the survey from Defendant lawyers is less than would be needed for the claims to be considered representative of Defendant lawyers in general. For resource reasons surveys to medicolegal experts were restricted to those for whom AvMA already had e-mail details. This limited the scope of potential medicolegal expert responses. Notwithstanding this, general themes have been picked out throughout this study that AvMA regards as indicative of feelings within both the legal and clinical professional groups. The main findings were as follows:

  • It is rare for lawyers to attend expert meetings;
  • The majority of Claimant lawyers (72%) believe that lawyers should be present at the expert meeting. This contrasted with 33% of experts believing that lawyers should be present and with only 20% of Defendant lawyers agreeing. Less than 2% of Claimant lawyers attend an expert meeting. Less than 60% had ever attended an expert meeting;
  • Less than 50% of lawyers had ever made an application to court in order to be present at an expert meeting;
  • Ninety-eight percent of Claimant respondents reported difficulties in getting Defendant lawyers or the court to permit the presence of lawyers.

 





Introduction

Top

Abstract

Introduction
Analysis of responses from…

Are expert meetings necessary…

Drafting the agenda

Accountability

Telephone meetings

Improvements to the process…

Summary and conclusions


Claimant lawyers

The genesis to the AvMA survey goes back to an AvMA London Lawyers’Support Group meeting in September 2006 in which Master Ungleyspoke about the operation of the Civil Procedure Rules relatingto clinical negligence specifically. Following Master Ungley’stalk there was some discussion about the expert meeting andthe desirability of lawyers’ presence at the meeting. Giventhe interest aroused on this subject, AvMA arranged for a dedicateddiscussion on this subject at AvMA’s Referral Panel meetingin November 2006. Once again, a great deal of debate and interestwas aroused. The focus of interest was the fact that Claimantlawyers had some very negative experiences of the expert meeting.In particular, many had experience of having to discontinueor significantly compromise a claim following an expert meetingin circumstances where previously the expert had appeared robustlyto support the issues in the case. This ‘turnabout’in cases perplexes the lawyer and causes great distress to theClaimant. It is often very difficult to know, understand andexplain what the basis for the retreat is. Up until this pointa great deal of both financial and emotional expense will havebeen expended, only for the Claimants’ case effectively to bedetermined not by a court of law, but by clinicians in a meetingthat takes place behind closed doors with no legal representativethere to observe.

Prior to undertaking the survey, AvMA had an anecdotal understandingof Claimant lawyers’ distrust of the expert meeting. AvMA waskeen to commission more hard data on this subject which relatesto potentially the most crucial part of the litigation process.Essentially, the key issues are candour, transparency and accountability.

The following summary analysis is based on the responses of60 Claimant lawyer firms completing a survey online (however,some responses were received by hard copy in the post) between30 March 2007 and 9 November 2007. Claimant lawyers completingthe survey were all members of AvMA’s Lawyers’ Resource Service.This resource service has 247 Claimant solicitor member firmswith 1343 individual lawyers. We asked that one representative,usually the head of the clinical negligence department, respondto the survey. We received 60 responses to the survey from Claimantlawyers.

There were some notable differences in responses between Claimantlawyers firms who had more than 4–5 members in the departmentspecializing in clinical negligence from those small firms withless than five members in the clinical negligence team. Manyin the former category have members of the team who are specialistclinical negligence practitioners (i.e. they have been accreditedby either the AvMA or Law Society specialist clinical negligencepanel). As there has been no adjustment or weighting of theresponses, this needs to be taken into account when consideringthe findings.


Defendant clinical negligence lawyers

In September 2007, the survey was extended to include Defendantclinical negligence lawyers following the recommendation ofMaster Ungley who is a specialist clinical negligence Masterat the High Court in London. As AvMA does not have direct accessto Defendant lawyers, Christian Dingwall, head of clinical negligenceat Hempsons in London, agreed to circulate the survey to keyDefendant lawyers. It has to be noted that the number of Defendantsolicitor firms that are instructed on behalf of the NHSLA orMedical Defence Organisations is very small (perhaps a dozenor so in the whole of England). Seven responded. Notwithstandingthe size of the sample, there was a very high degree of unanimityin the responses from the Defendant lawyers. For this reason,AvMA felt that it would be useful to include this informationin any event.


Medical experts

So far as the medical experts were concerned, it had never beenAvMA’s intention to survey this group. It has to be emphasizedthat AvMA, a registered charity, had no specific funding toundertake the research and therefore resources were very limited.However, AvMA was asked to present the data collated in relationto the expert survey to the Clinical Disputes Forum (CDF) whowere hosting a seminar on this subject. The CDF asked AvMA toextend the scope of the survey to include medical experts aswell. A disappointing number of survey responses from expertswere returned within the stipulated time-frame. However, severalsurveys did arrive after the date on which this data was evaluated.In total, 37 doctors provided answers to the general questionsin the survey out of 580 who were circulated initially.

Where not otherwise stated the analysis in this report is basedon the responses of experts who are clinicians currently actingas expert witnesses and have experience of the court process.Once again, some of these expert witnesses are more experiencedthan others. Again, AvMA identified notable differences betweenthe more experienced specialists from those less experienced.As with the evaluation of responses from lawyers, AvMA did notweight them.





Analysis of responses from Claimant, Defendant and expert witnesses

Top

Abstract

Introduction

Analysis of responses from…
Are expert meetings necessary…

Drafting the agenda

Accountability

Telephone meetings

Improvements to the process…

Summary and conclusions


The presence of lawyers at expert meetings

Medical experts and lawyers from both sides were asked whether it was desirable for lawyers to be present at the expert meeting. Figure 1 shows the results.



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Figure 1 The proportion of Claimant, Defendant and expert witnesses at the expert meeting

 

The majority of experts were very clear that they did not wantlawyers to be present at the meeting. There was a perceptionthat lawyers’ presence would ‘interfere’, be ‘adversarial’or ‘lengthen’ the meeting. Several suggested thatif lawyers were to be present their role should be an ‘advisory’one rather than ‘adversarial’. One expert suggestedthat if a lawyer is there it should be as ‘silent observer’in order to see ‘fair play’. One expert commentedthat the meeting ‘enables experts to explore the issuesin depth although exceptionally (in theory) it could allow oneexpert to dominate someone less experienced’. The commentsfrom experts in relation to question 1 are interesting viewedin the context of question 2 which asked lawyers of both sideswhether they had made applications to court to be present atexpert meetings.

Out of all the experts responding to the survey, only two hadactual experience of an expert meeting with lawyers present.This raises the question as to whether the experts’ view isone based on experience or theory.

Furthermore, many of those responding negatively to the notionof lawyers being present in the meeting gave equivocal or conditionalresponses: ‘not generally… there are exceptions though…’,‘not in the main although in some circumstances theirpresence would be justified…’, ‘No… providedexperts are familiar with general principles…’, ‘Aslong as experts are provided with a tightly-worded agenda…’.For the purposes of this survey, these responses were recordedas negative. Experts too suggested that there may be pros andcons to attending such meetings, one saying: ‘I don’tmind them [lawyers] sitting in but find it more difficult totrade a little in order to get agreement on the big issues.Personally, I prefer them not to be present.’ Anothervoiced: ‘They [lawyers] will not necessarily understandthe technical points arising’. More worryingly, anotherjested: ‘I generally know my colleague and I can jokeand chide and make them feel relaxed. We can have frank off-the-recorddiscussion before reaching agreement in writing. Formalizingthe process would interfere.’

To the question to lawyers as to whether applications to courthad been made to secure lawyers’ presence at expert meetings,only 44% of respondents had made such applications. Of those,52% had been successful in such applications. Those who saidthey had not made applications to court indicated that theywere unwilling to apply because it was the practice of the localcourt to refuse such applications. Cost penalties acted as adeterrent.

We asked whether lawyers attended expert meetings. The answers are set out in Figure 2.



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Figure 2 The attendance of lawyers at expert meetings

 

This was followed up by asking whether Claimant lawyers encountered difficulties in getting the Defendant and/or the court to agree to lawyers’ presence at an expert meeting. Ninety-eight percent of Claimant respondents reported such difficulties. The sort of problems that Claimant lawyers encountered with regard to the expert meeting consisted of the following:

  • Expert failing to answer all the questions and deal with the issues;
  • Vagueness/inappropriate use of legal terminology;
  • Failure to work through issues not anticipated by the expert agenda;
  • Altering the agreed position in the joint statement;
  • Failure to work through ‘Bolitho’ chain of consequences after the experts identify omission amounting to breach of duty;
  • Mismatch of seniority/powerful advocacy;
  • Mismatch of preparedness;
  • Ambush: the other party producing literature or additional documentation not agreed in the bundle;
  • Not producing the agreed joint statement in time;
  • Experts ‘settling’ issues of fact;
  • Failing to understand what was required of them;
  • Need to clarify the basis on which the answers were given;
  • Making concessions unknowingly.

Onelawyer reported: ‘…Expert changed his view because hedid not want to get the Defendant surgeon “into trouble” ordisagree with a colleague. Had I known this and been present,the case might have settled…’ Interestingly, one Defendantlawyer stated: ‘I know of three cases where joint statementsrequired very significant clarification after completion’.

Even experts, who on the whole did not want lawyers present,reported some difficulties including: ‘… a surgeon…referred to medical literature that had not been previouslyprovided…’. Another stated: ‘… the Defendantexperts “ganged up” on me and attempted (unsuccessfully) tobully me to not include parts of my opinion in agreed minutes’.Another reported: ‘I encountered an expert who had draftedlengthy prepared responses to the questions supported by obscurereference’.





Are expert meetings necessary in all cases?

Top

Abstract

Introduction

Analysis of responses from…

Are expert meetings necessary…
Drafting the agenda

Accountability

Telephone meetings

Improvements to the process…

Summary and conclusions

 

Fifty-six percent of solicitors thought not with 61% of expertsagreeing. One expert remarked: ‘… it often seems likea hoop that has to be jumped through simply to fulfil a role’.

AvMA asked Defendant and Claimant lawyers whether there were particular circumstances in which the respondent envisaged lawyers should or should not be present. The shared view was lawyers should be present:

  • In complex claims;
  • Where there are more than two disciplines involved;
  • Where there is no agreement on a single agenda;
  • With difficult experts;
  • Where a ‘neutral’ was likely to be required.

Conversely, lawyers were not required:

  • In simple claims;
  • When the experts were well briefed and where the agenda was agreed;

 





Drafting the agenda

Top

Abstract

Introduction

Analysis of responses from…

Are expert meetings necessary…

Drafting the agenda
Accountability

Telephone meetings

Improvements to the process…

Summary and conclusions

 

We asked who, in general, was responsible for drafting the agendasfor expert meetings. Forty-six percent of Claimant lawyers respondedthat it was a combination of both counsel and solicitors, andsometimes the expert too.





Accountability

Top

Abstract

Introduction

Analysis of responses from…

Are expert meetings necessary…

Drafting the agenda

Accountability
Telephone meetings

Improvements to the process…

Summary and conclusions

 

AvMA asked at question 12 whether in circumstances where lawyerswere not present at meetings, whether the discussion that ensuedin the course of the expert meeting was recorded in any way(other than by way of minutes taken and agreed by the expertsin the joint statement). For example, by video, tape recordingor transcript. Eighty-five percent of lawyers, both Claimantand Defendant, answered ‘no’ to this question. Onerespondent advised that the meeting was recorded by video, butseveral indicated that telephone conferences were set up byBT Conferencing and a transcript was available.





Telephone meetings

Top

Abstract

Introduction

Analysis of responses from…

Are expert meetings necessary…

Drafting the agenda

Accountability

Telephone meetings
Improvements to the process…

Summary and conclusions

 

As already indicated, many expert discussions do not involvean actual meeting at all but are conducted on the telephone.We asked at question 13 whether telephone expert meetings weresatisfactory in the main. There was a great deal of consensuson this from all participants of the survey regardless of discipline:83% of Claimant lawyers felt such meetings were acceptable and100% of Defendant solicitors agreed. Interestingly, only 64%of experts found them satisfactory.

There was unanimity on the issue as to when telephone discussions would not be appropriate and this was in the following circumstances:

  • Where the discussion is of a multidisciplinary nature;
  • Would involve more than two experts;
  • Would involve interpretation or reference to documents, scans, X-rays, etc. One expert view was: ‘…[telephone discussion]… not suitable if one expert is ill-prepared… [1] … had one meeting where the other expert was spreading papers out on the bed…’.

To the question as to what improvements or changes to the structure of the expert meeting might aid the litigation process the following responses are notable:

  • Abolish meetings;
  • Lawyers’ presence (18);
  • Recording/videoconferencing/transcript needs to be available (4);
  • Clear agenda (8 respondents);
  • A mandatory agreed paginated bundle of documents available to all experts (3);
  • Standard practice direction/model preamble to agenda addressing issues (2).

 





Improvements to the process of the expert meeting

Top

Abstract

Introduction

Analysis of responses from…

Are expert meetings necessary…

Drafting the agenda

Accountability

Telephone meetings

Improvements to the process…
Summary and conclusions

 

AvMA asked whether a mandatory interval (‘cooling-off’)period following the expert meeting but before the trial mightbenefit the litigation process. In the questionnaire we suggestedthree months. All Defendant respondents agreed with this notion.This contrasted with 64% of Claimant lawyers. However, in thelatter category, many more liked the idea, but queried whethera three-month interval would be viable as there were concernsregarding delays. This suggests there was general approval tothe notion of a mandatory cooling-off period.

Finally, AvMA asked whether there would be value in a neutralpresiding over the expert meeting. This notion did not findfavour with either Defendant or Claimant lawyers or expertswith 65% of experts rejecting the idea as against 75% lawyers.





Summary and conclusions

Top

Abstract

Introduction

Analysis of responses from…

Are expert meetings necessary…

Drafting the agenda

Accountability

Telephone meetings

Improvements to the process…

Summary and conclusions

 

Adopting a broad-brush approach to the results of the surveyindicates that there is consistency to the extent that Defendantsremain happy with the status quo so far as the expert meetingis concerned, in that they do not wish lawyers to be present.This contrasts with the view of Claimant lawyers. The questionhas to be asked as to why this should be so and suggests thatClaimants have rather more negative experiences at expert meetingsthan Defendants. Experts too are generally resistant to thenotion of lawyers being present. Nevertheless, it takes littleimagination to comprehend the concerns and anguish that anychange of view from Claimant experts following expert discussionscan be not only baffling to the Claimant who has gone perhapsseveral years down the line with the expert supporting the claimonly to find the expert has performed an ‘about turn’.The expert meeting takes place behind closed doors between cliniciansin the absence of the Claimant without his or her legal representativepresent. In a climate where scrutiny, accountability, transparencyand fairness all form part of the modern lexicon, it seems anomalousthat a crucial part of the litigation process seems to departfrom the general principles of natural justice.

 

 




Footnotes


Fiona Freedland, AvMA, 44 High Street, Croydon CR0 1YB, UK

The expert meeting: review of survey data provided by lawyers and medicolegal experts
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The expert meeting: review of survey data provided by lawyers and medicolegal experts

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