Expert discussions

Clin Risk 2008;14:112-114
doi:10.1258/cr.2008.080023
© 2008 Royal Society of Medicine

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Claire Fazan


Expert discussions can be a useful part of the litigation process.They have, however, proved at times to be a source of concernand frustration to lawyers and experts alike in clinical negligencecases.

The Final Report of Lord Woolf’s Access to Justice Inquiry notedthat ‘…in cases where opposing experts are involved,it must be a prime objective to identify areas of agreementand disagreement between the experts as early as possible and,if the case proceeds to Trial, to ensure that the outstandingissues are clearly identified for the Court’.

Rule 35.12 of CPR provides that the Court can direct discussions between experts for the purpose of requiring the experts to:

‘(a) Identify and discuss the expert issues in the proceedings; and

(b) Where possible reach an agreed opinion on those issues.’

The Civil Justice Protocol for the instruction of experts clarifies the purpose of these discussions as being where possible to:

‘(a) Identify and discuss the expert issues in the proceedings;

(b) Reach agreed opinions on those issues, and if that is not possible, to narrow the issues in the case.’

There has perhapsbeen a tendency on the part of lawyers instructed on both sidesof the litigation to assume that experts meetings are mandatoryand/or that if experts do not meet this will be the subjectof judicial criticism at trial.

Expert discussions are a costly part of the litigation process.They are also enormously burdensome for the experts concerned.The lawyers must review the expert evidence in the context ofthe pleadings and decide whether a meeting of particular expertsis likely to serve the purpose of assisting the Court by clarifyingthe issues in dispute. If it is evident from the expert reportsthat all the pleaded issues to which their evidence relatesare in fact agreed, no purpose can be served by requiring themto meet. Similarly, if it is probable that the joint statementresulting from an expert discussion is one that will be so longand complex that it is unlikely to assist the Court or limittime spent on those expert issues, what purpose can be servedby requiring those experts to meet?

The fact that expert discussions are not mandatory has now been highlighted in the latest Model Directions1 produced by the clinical negligence Masters in the High Court which provides:

‘discussions between experts are not mandatory. The parties should consider whether there is likely to be any useful purpose in holding a discussion and should be prepared to agree that no discussion is needed…’

 





Alternatives to expert discussions

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Alternatives to expert…
The agenda

Expert preparation for…

Should lawyers be present…

The way forward

 

It may well be that other methods of clarifying the issues indispute will be more helpful to the Court and more cost-efficient.Part 35 questions to experts remain a much under-used tool,but one which can flush out whether a pleaded issue is in factin dispute.

A different approach to the format and sequencing of some quantumreports may be another possible approach to clarifying issuesin dispute in a cost-efficient manner. It is not unusual fora joint statement of care experts to be lengthy and complexand, far from providing clarity and assistance to the Court,can all too often create uncertainty and lead to trial timebeing devoted to disentangling and clarifying what was and wasnot agreed. Greater clarity might be achieved were it a requirementthat the Defendant care expert identifies within the reportthe extent of agreement and disagreement with the Claimant’scare expert and were the Court to permit the Claimant to servea supplementary report from its own expert addressing the extentto which there is agreement or disagreement with the Defendant’scare expert’s recommendations.





The agenda

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Alternatives to expert…

The agenda
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Should lawyers be present…

The way forward

 

The preparation of agendas has become one of the most contentiousparts of litigation. There has been a prevalence of dual agendasor multiple questions. This probably stems from a number ofcauses including: a failure to understand what the issues areand whether they are in dispute; a failure to accommodate withinan agenda the case being put by the other side; an attempt byparties to use expert discussions to cross-examine by agenda;and an overly rigid adherence to questions proposed by Counselor client such that agendas include duplication and/or questionsare incomprehensible.

The Agenda should follow the pleaded issues and should relate only to those issues which remain in dispute. It is good practice to set out in the preamble to the Agenda the issues relevant to the experts’ discipline which are agreed and those which remain in dispute. The importance of this is now highlighted in the latest Model Directions which state:

‘…a draft Agenda which directs the experts to the remaining issues relevant to the expert’s discipline, as identified in the statements of case shall be prepared …’

 

The exercise of drafting the Agenda in such a way should ensurethat, if they have not already done so, the lawyers identifyfor themselves and their clients what issues remain in disputeand thus whether an expert discussion is truly necessary.

It should rarely, if ever, be necessary to have more than oneagenda for an expert discussion. Where there is a real disagreementin relation to a particular question (as opposed to a matterof style) this should not lead automatically to two separateagendas. In such a situation it is quite possible to have anagreed Agenda with an additional question/questions which arenot agreed. This approach avoids the duplication and complexityreferred to above.





Expert preparation for discussions

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The agenda

Expert preparation for…
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The way forward

 

The outcome of expert discussions is often determinative ofcases. For this reason, the experts must prepare for the expertdiscussion as thoroughly as they would for trial. Those instructingthem should ensure that they are facilitated in doing so. Thatmeans ensuring that they are provided with an agreed bundleof documentation for the discussion well in advance of the discussionas well as providing them with the final agenda more than sevendays prior to the discussion.

Lawyers should also ensure that the arrangements for the discussionare appropriate. Arrangements whereby a discussion takes placewhile one expert is driving, or which is fitted between seminarsat a conference or late at night following other expert discussionsare neither conducive to careful and reasoned discussion, nordo they suggest an appreciation of the level of preparationrequired.





Should lawyers be present at expert discussions?

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Alternatives to expert…

The agenda

Expert preparation for…

Should lawyers be present…
The way forward

 

The issue of lawyers being present at expert discussions has been a matter of considerable debate. The Model Directions provide:

‘unless otherwise ordered by the Court, or unless agreed by all parties, including the experts, the parties’ solicitors shall not attend such discussions, if solicitors do attend, the experts may if they so request hold a part of their discussions in the absence of the solicitors. Where solicitors do attend, they should not normally intervene save to answer questions put to them by the experts or to advise them upon the law.’

 

Objections include: concern that the presence of lawyers willbe intimidating and/or will inhibit discussion; that the informalityof expert discussions facilitates agreement and this will belost if lawyers are present; and that it makes the arrangementsfor expert discussions more complex and costly.

None of these objections really stand up to scrutiny. Lawyerscan listen in to discussions via telephone and so arrangementsneed not be more complex. There is no evidence that the presenceof lawyers at meetings in fact inhibits discussion. If an expertis going to express a different view to that in his/her report,that will be evident at trial, so why is there a problem aboutthe lawyer hearing it said at the expert discussion? Surelyit is better that they do?

The concern about the loss of informality is perhaps the most worrying objection. It is worrying for two reasons. First, lawyers trained in the adversarial system are accustomed to being on opposing sides to professional colleagues for whom they may have the greatest respect. Doctors on the other hand, are not. Some experts have commented that the desire to find common ground with a much respected colleague is a powerful dynamic within an expert discussion. As a consequence, answers may be ambiguously phrased and as a consequence experts may understand the answers to mean different things and/or to reflect agreement when there was none. This is unhelpful to the litigation process. Second, anecdotal comments suggest that there has perhaps been a tendency by experts to interpret incorrectly the words ‘and where possible reach an agreed opinion…’ in 35.12 CPR as implyinga duty on them to reach agreement or to compromise and findthe common ground and thus avoid the need for Trial or Trialof specific issues. If this is so, then it is especially concerningthat these meetings have taken place behind closed doors.

The presence of solicitors at (or listening to) expert discussionscan also facilitate the administration of the discussion andthe clarity of the joint statement. It is not uncommon for ajoint statement to be prepared by experts and then to find afterit has been signed off and sent to lawyers that a question hasbeen missed, that an answer is incomplete, or that two answers(perhaps to similar questions on 2 Agendas) are contradictory.While lawyers should not in any way seek to influence the expertdiscussion, it is entirely appropriate for lawyers at the conclusionof the discussion to point such things out in order to avoidthe risk that the discussion will have to be resumed on anotheroccasion (with all the attendant costs).

Expert discussions involving experts from more than one discipline,two agendas or an agenda comprising of more than 20 questionsare exactly those which will require clarification from lawyersor, following which, a further discussion between experts islikely to be required. For this reason, it is my view that thestandard direction should be modified to provide that in suchcases solicitors should attend the expert discussion.





The way forward

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Alternatives to expert…

The agenda

Expert preparation for…

Should lawyers be present…

The way forward

 

It is hoped that a more rigorous approach to the arrangementsfor expert discussions coupled with the new Model Directionswill encourage a more cost-efficient and productive approachto expert discussions.

 




Footnotes


Claire Fazan, Leigh Day & Co, Priory House, 25 St John’sLane, London EC1M 4LB, UK


1 Suggested Model Directions for Clinical Negligence cases before Master Ungley and Master Yoxall: Version 4 (June 2007) Back

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