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Impartial experts - who needs them?

Sophie Pearson, solicitor at MPS panel law firm Kennedys, advises on what it takes to be an expert witness

In the interim report that preceded Hong Kong’s Civil Justice Reform, a damning indictment of the state of expert evidence was lifted from Hong Kong’s Counsel magazine.

It read as follows: “Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are in practice hired guns: there is a new brand of litigation hangers on, whose main expertise is to craft reports which will conceal anything that might be to the disadvantage of their clients.”

That article was published two years before Lord Woolf, then head of the Civil Justice system in the United Kingdom, produced his Access to Justice report ahead of the UK’s own civil justice reforms. That report identified a similar problem with expert evidence.

It said: “The purpose of the adversarial system is to achieve just results. All too often it is used by one party or the other to achieve something which is inconsistent with justice by taking advantage of the other side’s lack of resources or ignorance of relevant facts or opinions. Expert evidence is one of the principal weapons used by litigators who adopt this approach.”

The root of the problem

Counsel magazine’s editor thought one origin of the expert “problem” was judges’ wish to review experts’ written evidence before going into court, which unwittingly contributed to the desire to ‘craft’ reports – what litigant would ignore the opportunity to implant his case in the judge’s mind before the hearing began? Lord Woolf considered difficulties arose as a result of the expert being initially recruited as part of the team that investigated and advanced a party’s contentions and then having to change ‘hats’ halfway through in order to provide a report for the court.

what litigant would ignore the opportunity to implant his case in the judge’s mind before the hearing began?

Hong Kong’s solution to the problem was two-fold – a new rule stipulating that the duty of an expert is to help the court and that this duty “overrides any obligation to the person from whom the expert witness has received instructions or by whom he is paid” and a code of conduct emphasising, ad nauseam, that an expert is not an advocate for a party.]

The heart of the problem lies, of course, in the adversarial model used to solve disputes. The intrinsic defect with this model is that because it is operated by human beings, who are emotional creatures, it tends to polarise positions. This dynamic of polarisation acts rather like a magnetic field, affecting everything in its path, including expert evidence. This remains a significant problem and experienced and inexperienced experts alike must be aware of this dynamic and refuse to be drawn into it.

The demands of expert work

For those doctors who think expert witness work is an easy way to make a bit of extra money, they should rethink. It requires a very specific skillset – extensive knowledge of the medical practice that is under scrutiny, impeccable judgment, clarity of thought process and of expression (both oral and written), a robust temperament to withstand the inevitable pounding that goes hand-inhand with cross-examination in the witness box and, finally, and perhaps most importantly, lack of a hidden agenda.

The agenda may be a conviction that doctors shouldn’t be criticised, or that this doctor shouldn’t be criticised, or that patients should be entitled to higher standards of care, or that claimants drain the healthcare system of money. The list is endless but the point is that these agendas are dangerous, as they have the potential to cloud judgment and introduce bias into the process.

As a lawyer who has worked on both sides of the fence (to continue the adversarial language) but has exclusively represented doctors and hospitals for the last 14 years, it occurs to me that maybe a simple communication gap between the medical and legal professions has led to a misunderstanding about what expert witness work is all about. I consider there to be two myths surrounding expert work.

maybe a simple communication gap between the medical and legal professions has led to a misunderstanding about what expert witness work is all about.

Before looking at these myths, here are the parameters within which the system operates. As in life, mistakes in medicine are an occupational hazard and when patients receive treatment that falls below a reasonable standard of care and it causes harm, the interests of the patient are uppermost (doctors don’t, after all, treat patients for their own glory) and patients are, and rightly so, entitled to receive financial compensation to put them back, as far as possible, in the position they would have been in but for the negligence. On the other side of the coin, when doctors are accused of negligent treatment, they are entitled to investigate those allegations exhaustively and, where it appears that they have done nothing wrong, to defend them robustly. Experts-in-training who struggle with these parameters had better stop reading now.

The first myth is that defence lawyers automatically defend claims. We don’t, and to that extent ‘defence lawyer’ is a misnomer. We would better be described as investigators and risk assessors. We spend our days investigating liability from a neutral standpoint and deciding whether the risk of the claimant succeeding at trial is a risk that our client should buy off, and at what cost. The term ‘defence lawyer’ is entirely appropriate for those cases that go to trial, but in truth, not many do.

The second myth is that lawyers’ ideas of a good expert is one who will tell us what we want to hear. Wrong again. Undeniably, every lawyer’s idea of a dream day in the office (sad though it may sound) is receiving a supportive report from an expert with vast clinical experience and an impeccable history of medicolegal reporting, but that is beside the point. The experts we need are experts who will carry out a thorough review of all of the evidence and tell us, at an early stage, what their honest view is about the care provided so that we can advise our client properly and deal with the consequences of that opinion promptly.

A litigator’s definition of disaster is finding out at a pre-trial conference, when most of both parties’ legal costs – which will now be substantial – have already been incurred, that the expert is wavering in his previously robust view about the standard of care provided. Even more catastrophic is when he gets cold feet in the witness box.

A problem solved

Medical negligence litigation is not about blindly fighting our client’s corner, whether we are for the claimant or defendant. If the system is operated with integrity and competence it is about problem-solving, pure and simple. A little like doctors who cannot treat their patients properly if they make the wrong diagnosis, for lawyers to do their job properly we also need to know what the problem is, and that is why impartial, independent experts are fundamental to the system.

As Malcolm X once said: “I’m for the truth, no matter who tells it. I’m for justice, no matter who it’s for or against.” The expert-in-training would be well advised to stick this quote to their computer screen as they settle down to prepare their first few reports. The good, experienced expert, the expert who will be instructed time and again, will have it engraved in their mind’s eye.

Sophie Pearson is based at the London office of Kennedys and practised in Hong Kong in 2013
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