IN MY 10 years experience of working alongside solicitors, the police and the CPS as an expert witness, I have worked on a fascinating variety of criminal and civil cases – from murder and rape cases through child care proceedings to ‘best interest’ cases in the High Court.
Also throughout that time I have encountered an equally fascinating variety of lawyers who have presented me with some extraordinary challenges in terms of the working relationship between the instructing party and the expert.
So it is with the benefit of hindsight that I write this article, offering some insights from my own profession in order to look at this most interesting and complex of relationships.
One of the most salient aspects of the relationship between the expert and the lawyer is that lawyers often take their own professional style of communicating among themselves into their communications and interactions with experts.
Those of us who have stood idly by while two barristers suddenly leap into their professional personae in order to do battle on some legal issue are familiar with the very formal yet often theatrical and hyperbolic debates which ensue. The constant switching on and off of these personae is made even more interesting to observe when the lawyers involved know each other well and therefore switch between this performing mode and their normal professional and personal behaviour.
The spectacle is perhaps particularly bemusing for psychologists whose own professional approach is underpinned by straightforward communication and problem-solving skills, and whose range of professional styles is really likely to vary only in degrees of formality as required by a given situation.
It is my view that many issues between lawyers and experts arise from this very issue, as many solicitors seem either unwilling or unable to interact with experts simply as professional to professional.
It is so refreshing to receive a telephone call or email from a solicitor to introduce themselves and the case in which they are involved in order to ask me if this is a suitable case for me to be instructed in, and if I am interested and available to take on the work. Psychological assessments and reports are often highly complex, and in this field in particular it is very worthwhile taking the time to have that conversation. It also is a good way of engaging the interest of a potential expert if, like me, your expert cannot resist interesting- sounding cases.
The flip-side of that approach is not appealing.
Opening the door to the postman staggering under bulky files and boxes of documents in which may or may not be found a terse and cursory letter of instruction really does not endear me to that solicitor, especially as I am then left holding the baby in the event that I do not accept the instruction for whatever reason, and find myself obliged to deal with the unwanted documentation.
Observe courtesies
No other profession that I can think of does that.
So the first suggestion is simply to observe normal professional courtesies which most other professionals accept as a matter of course. We certainly wouldn’t dream of saying imperiously: “I am going to have you do X!”, as it just wouldn’t happen if we did. Indeed, among the medical and mental health worlds we often go to the other extreme by writing rather obsequious letters to each other suggesting that it would be doing one a great favour if one’s esteemed colleague would be good enough to consider accepting our referral!
After all, lawyers do need experts at times and, yes, it is also the case that experts are professionals who are prepared to do medico-legal work because it is interesting and reasonably well-paid.
Do remember, though, that good experts are often very busy and may be in the enviable position of being able to pick and choose which cases they wish to take on.
This positive first step also has the benefit of being the basis for a symbiotic working relationship. It is much better if lawyers and experts work together in a mutually agreeable way, being respectful of each other’s profession and their expertise in their given field. There can also be much that is improved if instructing parties and experts are able to discuss the case and agree on a sensible letter of instruction covering all the important issues.
It is so often the case that the legal question as stated simply cannot be translated into a meaningful medico-legal issue. And dare I suggest that sometimes the lawyer will not fully appreciate some of the salient aspects of a complex clinical case, and therefore will derive great benefit from thinking through relevant issues and developing helpful and realistic questions on which the letter of instruction can then based.
Furthermore, there is the real opportunity for the lawyer and expert to benefit from the interprofessional discussion of the issues in the case and they may even learn from each other, thus enhancing the expertise of both parties on the particular issue on which the case is based.
A co-operative working relationship can bring many benefits for all concerned, from the personal need to feel valued and useful to a greater level of commitment and information-sharing and an inclination to read lastminute documentation last thing at night!
When your expert contacts you to ask for discussion, clarification, advice or further instructions, it probably means that that is what they need to do in the interests of your case. Do you always respond to their reasonable request?
When your expert sends you their report, always acknowledge it and thank them as a basic courtesy, if nothing more.
This brings me onto the next issue. While it is recognised lawyers tend to work under great pressure, deal with many on-going cases simultaneously and work excessive hours – often late into the evenings and weekends – you must not have the same expectation of your expert.
Outright threats
You must realise that you simply cannot force your expert, whether by insisting, bullying or coercion or outright threats, to do the same. I have known examples of all of these approaches, even from normally civil and amenable lawyers.
What you can do is recognise that you are having to juggle conflicting demands between human clients and the court processes and that your professional style as a lawyer is probably reactive as a result. It must be acknowledged, though, that, although often lastminute, stuff arriving can be predicted and negotiated beforehand with your expert. However, there will always be circumstances where you really may not be able to help having last-minute requests as a result. Fair enough: you can certainly ask your expert to do last-minute preparation, amendments or addenda. But you can only reasonably request that of them.
Bear in mind that, if it has been left to 6pm on Friday evening, you may simply be unable to get hold of your expert, and in any case they may be disinclined or simply not in a position to do it for you at very short notice. That is the risk, but it is your risk alone.
Threatening your expert with dire consequences if they do not do it for whatever reason leaves a very nasty taste and inevitably sours the professional relationship, often just before going to court – which is counterproductive for your case, as experts are people and being threatened and shouted at is upsetting.
Introductions
Do make a point of introducing yourself to your expert when you meet at the court, as this is often the first time you and your expert will meet face to face. It is often disconcerting to your expert when you lawyers all know your court environment and processes – and indeed each other – so well, and it is simply sensible to recognise that your expert may not feel quite so comfortable as you do; so do what you can to put your expert at their ease.
Always take the opportunity of talking though any issues with your expert and be interested in their final thoughts on the case before it begins, as otherwise it may be too late to iron out any problems.
Even though you will probably be required to slip in and out of your professional personae with your colleagues at court, do try to remain utterly normal in your interactions with your expert.
When the expert has finished giving their evidence, do let them know if they have carried out their role well as, in my personal experience, it is often impossible to tell how one has done. If they have done less well, perhaps it would be diplomatic to say so at a later stage.
While your professional interest in your expert may effectively cease the moment they leave the court, remember that it will probably be their professional practice to see the case through to the end, and the same applies to the outcome of a court case.
It is also appropriate to thank them for their work, if only briefly. It will often have been more than a means of earning money to the expert, so acknowledge their efforts even if you did not get quite the outcome you had hoped for from them. Good feedback, including constructive criticism, is useful and any decent expert should be prepared to hear your comments.
Personally speaking, I would much rather know if I needed to improve on something than have the lawyer just make a mental note not to instruct me again. There is no point in leaving the expert in the dark if they really have any failings, as that leaves the problem to repeat itself in future cases and wastes the opportunity for the expert to recognise the on-going need to develop their skills further.
Most of all, simple things like mutual respect, professionalism and common courtesy make everyone’s working life more bearable.