“Speculate before you accumulate. I am a long term regular writer and advertiser in 'Your Expert Witness - the Solicitor’s Choice'. This investment pays me substantive dividends; I get more Expert Witness work with every issue. Not only solicitors and barristers but also judges seem to read it. It is a win-win situation. Success breeds success; I must continue to write and advertise.”
FIRSTLY, when dealing with claimants, the appointment-making process should be clear and unambiguous, as should contact details for the expert or their office.
Clients often benefit from a brief explanation of the process at the beginning of the appointment. They may perceive that they have been swamped by paperwork, and may well feel confused about the process.
Clients should be treated with respect, and dealt with courteously.
A common criticism of experts is that they appear to be in a hurry and do not listen. Taking an accurate and detailed history at an early stage is likely to avoid further questions being raised later on. Make clear and unambiguous contemporaneous notes for preparation of the report, and for future reference if needed.
Dealing with instructing parties Make sure that there is a clear line of communication. Keep instructing parties informed about appointment details and any difficulties in communicating with clients.
If it becomes apparent that there is an issue around a claim (for example, minor or insignificant loss), phone the instructing party straight away and make them aware.
Send the completed report promptly and respond to requests for amendments or further comments promptly. It does not engender a good working relationship if an instructing party feels that they have to persistently chase an expert.
Make sure that terms have been agreed in writing at an early stage to avoid misunderstanding or conflict later on.
What makes a good written report?
Layout: First impressions are important; a poorly presented report is unlikely to inspire confidence in the writer, either with the instructing party or the court.
A written report needs to be CPR-compliant. It must include certain essential points, for example who requested the report, for what purpose, what sources of information were used to prepare the report, and a statement confirming the expert’s duties to the court.
Paragraphs should be numbered and all the pages should have a header or footer.
There should be an index and appropriate use of appendices.
It should also contain a statement of the expert’s qualifications and that expert’s area of relevant expertise.
Content: It is not enough to simply state what the injury was and to offer a prognosis. The court needs to know what loss of amenity the claimant suffered as a result of the injury. There should be a detailed account of the effects of the injury on the claimant’s domestic life, their work situation and their social life.
There is a clear distinction between fact and opinion, and that distinction should be explicit in the expert’s report. Furthermore, information given to the expert that has not been independently verified should not be presented as fact.
If opinions are expressed, then they should be defensible. That may be in terms of recognised prognostic features or purely on the basis of an expert’s experience or expertise.
Experts absolutely must not offer opinions that are outside their field of expertise.
Reports must be proofread for mistakes and typographical errors, as these can seriously undermine the report’s content.
Is training important?
Many expert witnesses have little or no formal training in report writing or in giving evidence. Appropriate training is invaluable and can make the difference between producing adequate reports and excellent reports.
The prospect of giving evidence in court can be daunting and the manner in which an expert gives their evidence can make a huge difference to the case. Experts need to be aware of how best to give their evidence and how to avoid the common tactics used by opposing counsel in crossexamination.
Responding to questions or requests for further comments Experts have an obligation under Part 35 of the CPR to respond to requests for clarification of a medical report. They should not, however, feel compelled to speculate, hypothesise or offer an opinion that is outside their field of expertise.
Experts should not feel obliged to comment on the honesty of a claimant or defendant: that is a matter for the court.
Experts should not allow themselves to be or feel bullied. We have the facility to contact the court for guidance when necessary, and sometimes that fact needs to be pointed out to defendant or claimant solicitors.
Should personal injury experts have some knowledge of low-velocity impact injuries?
A personal injury expert should be conversant with the concept of Delta V, and the important issues around low-velocity impact injuries.
A medical expert should not, however, be expected to comment on forensic motor engineering evidence as this would be outside the field of their expertise.
The medical expert should stay within their field of knowledge and expertise: it is for the judge to weigh up the submitted evidence.
Fees
We all want to earn a living, but keep it reasonable and do not price yourself out of the market.