Many solicitors dislike experts’ meetings. That is not to say that we do not consider them to be a useful part of the litigation process. Rather we dislike the fact that it is one of the few times during a case where we must relinquish control. Our hope is that following the meeting we don’t encounter any unpleasant surprises when the resulting experts’ joint statement lands upon our desk.
When such surprises occur, at best they result in unnecessary work for everyone involved to try to resolve any problems that arise and at worst they can, unintentionally, jeopardise a whole case. The costs incurred in trying to remedy any problems can be substantial and potentially irrecoverable at the conclusion of a case.
If experts are mindful of the following points it will reduce the prospect of such unintentional consequences occurring.
Preparation (is key)
If your instructing solicitor has not proposed a conference between the exchange of expert evidence and the experts’ meetings and you consider that one would be helpful, do not be afraid to say so. It may be that in some cases a full conference with counsel will be overkill but if you have issues you feel need to be discussed then a telephone conference can be arranged. It is important that any concerns or issues arising from your review of the other side’s evidence are addressed before the meeting.
Read everything again. Look over the relevant medical records, your statement, your report and all other expert reports. Consider whether you have seen everything and whether there is anything referred to in the other side’s evidence which you may not have seen. Also, consider whether there is anything the opponent’s expert does not seem to have seen or considered.
There may have been disclosure of relevant documentation since you prepared your report that may impact upon your views. It is undesirable to be ambushed during an experts’ meeting with a new document or to subsequently find out that your opposite number had the benefit of seeing evidence you had not.
Your instructing solicitor should send any new relevant documentation to you without prompting but this may not always happen in practice. This occurred recently within our own department when it became apparent following an experts’ meeting that our expert had access to a document fundamental to the case that the opponent’s expert had not seen. This had a direct impact on the evidence given and had the matter proceeded to trial, could have caused significant embarrassment to the opponent and their expert.
It is always helpful, particularly in a complex clinical negligence matter, for the experts to have had some input into the draft agendas. Review agendas and seek clarification from your instructing solicitor if anything is unclear. If you think there are questions which may cause difficulty for you then highlight this. Solicitors and experts often have a very different approach to the same issue so it is important that there is a level of understanding when it comes to what is being asked in the agenda. This will help to ensure that the maximum benefit is gained from the meeting itself and that no important issues are missed.
Allow sufficient time for the meeting
We understand the difficulty of coordinating busy schedules in order to arrange meetings. However, allowing sufficient time to properly discuss all of the issues in the experts’ meeting can save you time in the long run. It will reduce the time that may be required for follow up with your instructing solicitor if they feel that there are outstanding issues that need to be considered.
Have a discussion
This may seem obvious but do not simply exchange written answers to the agenda that are based on your report. The purpose of the discussion is for experts:
“to agree and narrow issues and in particular to identify:
- the extent of the agreement between them;
- the points of and short reasons for any disagreement;
- action, if any, which may be taken to resolve any outstanding points of disagreement; and
- any further material issues not raised and the extent to which these issues are agreed.”
(Civil Procedure Rules Practice Direction 35, 9.1)
The only possibility of achieving that is to discuss the issues with your opposite number to explore both your views and the basis on which you have formed your views.
You are not alone
If you feel that there are any problems with what is being asked of you or you encounter any difficulties with your opposite number, remember that you are not alone. It is always available to you to ask the court for directions to assist you in carrying out your function as an expert. This must be done by filing a written request (CPR 35.14).
The joint statement
Allow sufficient time to complete the joint statement
Set aside sufficient time to either take the lead in drafting the statement or to consider and amend any drafts sent to you. Unfortunately, unintentional statements or mistakes can find their way into a joint statement because it has not been given proper consideration. Rectifying any problems caused by this can be a time consuming headache for all involved, impact upon an experts’ credibility and jeopardise a case. This is something our own firm has experienced and whilst the expert attempted to explain and clarify the subsequent error, it was too late and caused unrectifiable damage to an already difficult case.
Recognise the importance of the joint statement
Give the statement the same care and consideration as you would your report. Remember that the lawyers will scrutinise it in the same way they have your report and that alongside your report, you will be cross-examined on its contents should the case proceed to trial. Trials are increasingly common, particularly in clinical negligence cases and therefore you should prepare on this basis.
In the case of Palmer v Portsmouth Hospitals NHS Trust  EWHC 2460 (QB), the claimant’s obstetric expert changed his view at trial from that which had been set out in the joint statement. The judge did not accept the late change of opinion at trial and the evidence given by the expert in the joint statement stood.
Review the statement alongside your report and relevant documents
Consider whether you have included anything which is inconsistent with the view you have previously expressed or something you have not previously dealt with. Take care to ensure that the conclusion you have reached in the joint statement is carefully considered and based on all of the evidence you have been presented with.
And if you do change your opinion
It is hoped that the experts will have had sufficient opportunity to consider all of the relevant evidence prior to the meeting such that there will not be a change in opinion. However, an experts’ duty remains to the court and there will be circumstances where they feel that on reflection their view has shifted from that which they expressed in their report.
If this happens, the important thing is to give careful consideration as to why your opinion has changed. Remember that if there is a significant change you must include a note or addendum to explain your change of opinion to the court (CPR PD 35 9.8). It is more likely that if you do this, assuming that it is not fatal to the case, the court will be more sympathetic to the change of opinion should the matter proceed to trial. If additional evidence has been presented to you, explain this and explain why this information could not be ascertained from the records and statements that were previously available.
In the case of Raggett v King’s College Hospital NHS Foundation Trust  EWHC 1604 (QB), the judge was not critical of the claimant’s expert for having changed his opinion in the lead up to the experts’ meetings following receipt of a new clinical note. The expert carefully and thoughtfully explained the reason for his change of view based upon this further evidence and was still found to be an “impressive and highly expert” witness.