There are a myriad of issues that you might consider as an expert when preparing a liability report, Carla Applegate will focus on the main themes in this article. The previous article in this series focused on the reporting requirements of expert evidence.
At the outset, experts should note that the vast majority of instructions from Stewarts Law will request that the first draft of any report is marked as draft and for the purpose of advice only since it is usually the first in a number of versions that will be amended following further instructions and evidence. Without being marked as such, the court could compel disclosure of earlier (and possibly incomplete/unapproved) versions. The opinion given throughout the report must always be that of the expert. However, this opinion will be tested by counsel and the solicitor; further points may need to be added in and clarification may be sought before the report is in its final version and ready to be served. This usually leaves plenty of time to ensure that the report considers all relevant information in the claim.
Expert evidence: the law and the facts
The solicitor will set out in the expert's instructions the matters to be addressed within the report. The terms of "breach of duty" and "causation" become very familiar to experts and solicitors will often assume that the expert knows exactly what they mean. As with any ambiguity in instructions, if experts are unclear about this they should raise their concerns with the solicitor as soon as possible.
To those starting out in the medico-legal world, it is undoubtedly helpful for experts to understand these "shorthand" phrases and the legal tests to be applied in order to establish both breach of duty and causation and, in so doing, liability generally. However, they can become tricky concepts and the legal team should be clear about the question they are posing to the experts. There should be plenty of opportunity for experts and the legal team to explore how the legal concepts apply to the facts in each case during in the course of the litigation.
As noted in the previous article in this series, there are frequently disputes as to the facts in a case. Since it is the Court's prerogative to make findings of fact, expert reports should deal with the facts carefully and acknowledge that where there is a factual dispute it is a matter for the Court to determine. These disparities should usually be dealt with by the expert by identifying them in the report and providing their opinion on each alternative premise. In some situations, it may be appropriate for the expert to use their expert knowledge to explain why they believe one set of facts to be more likely, but care should be taken to avoid treading on the Court's toes.
Early advisory/screening reports and the development of opinion
Reports that are intended solely for the benefit of Stewarts Law, and not intended for disclosure, have a different purpose and status to those prepared for the benefit of the Court under CPR 35. However, the instructing solicitor will clearly require a report that is based upon the same principles in order to allow them to consider what other evidence may be needed. With the benefit of that evidence, further and more efficient investigations can then be undertaken by the solicitor.
It is important for experts to set out in their report the material on which they have based their opinion. This applies no less than in a formal report as it allows us all to identify the limits of the expert opinion. Some element of pre-existing bias must unfortunately be assumed since the report is based upon selected records and/or a summary provided by the solicitor who has provided the information they consider to be the most relevant to the expert's opinion. This needs to be particularly borne in mind if the report is later revisited with the full range of evidence available; the expert must ensure the report and opinion considers all the evidence.
The limited availability of evidence to the expert for the purpose of a screening report is exactly what makes them accessible and quick at the outset of a case. However, it is always appreciated that this limits the expert's ability to provide an absolute opinion. The preliminary opinion will almost certainly develop and may change entirely on receipt of further information.
When holding out any view or professing to give advice whilst writing the report, the expert must at all times consider carefully why what they are writing is their opinion. The crucial test to bear in mind is whether they would be comfortable being cross examined on their opinion, and how they can support it.
If there are ever queries that are not immediately answerable and require some further thought or research, they should be flagged up by the expert with a plan to return to the matter at a later date. There are may sometimes be queries that the expert considers wholly unanswerable on the current state of knowledge, and those too should be clearly identified.
The expert should reference relevant information and evidence available, as well as guidance from appropriate professional bodies and academic literature to support their opinion in a full report. Copies of any reference relied upon should be provided, if at all possible.
There are of course times when further discussion, rumination and information may change the expert's opinion on matters. In the event that the expert's view changes materially, it should be discussed with the instructing solicitor immediately.
It is not just the expert's opinion that is important. It is hugely helpful to have expert input as to any further records and information that may be available and should be requested by the solicitor.
Being specific about what further records and information should be requested is important as the solicitor may not have appreciated that this data exists, and those providing the disclosure are often in the same position. It is very much a case of the blind leading the blind, so identifying the further material that could be available and detailing exactly what should be requested is invaluable.
With databases now being widely used in many settings, and increasing use of electronic records, there is an ever-growing ocean of potentially relevant electronic data available. In their practice, the expert will know what information is usually available, and should ensure that they are aware of the full extent of data that could be available if requested.
Similarly, it is expected that experts will be aware of all relevant guidelines or protocols (in place at the time of the suspected negligence) that often provide helpful evidential support.
Experts will often be aware of potential issues to be explored that technically fall outside their own expertise. Since an expert should not comment outside his or her specialism, the need for further expert evidence in another discipline should be flagged up to the instructing solicitor for them to consider at the earliest opportunity.
In the early stages of a case, this ensures that the case is fully and efficiently investigated. Within the litigation, solicitors must be careful that expert reports are not unreasonably obtained - Court permission will be needed to rely on any expert evidence. In applying for such permission, it is necessary to set out to the Court clearly why that report is required and often the solicitor will refer to the expert's suggestion.
Finally, one of the key goals of the client in pursuing a claim is often to understand what has happened and why. They have often been left without a full explanation for the situation in which they now find themselves. Liability reports are often the first and only opportunity the client has to understand what happened. Clients are, almost without exception, extremely grateful to the experts for their explanations. Whilst this is technically a by-product of the litigation, it is always something for which we are equally grateful.
The importance of good communication with the instructing solicitor is clearly a running theme. That is not to say that there needs to be massive amounts of input, but both the solicitor and expert need to work to ensure that the evidence is as clear and full as possible. If there is ever any doubt on the expert's remit or specific instructions, we always welcome a call or email to confirm matters.