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How can experts avoid criticism in court?
- Apr 26, 2024
- Latest Journal
Working as an expert in civil claims is often thought by clinicians to be an interesting and intellectually challenging role. Many experts feel comfortable producing reports and discussing their opinion in conferences. However, the prospect of being cross-examined in court is often daunting, even for those with considerable experience.
Associate Amy Goldman provides essential points to consider for experts who are giving evidence at trial, and provides some tips for cross-examination.
Understand your duties
An expert’s overriding duty is to help the court on matters within their expertise (Civil Procedure Rule (CPR) 35.3). As an expert, it is essential you are familiar with CPR part 35 and the accompanying practice direction, which sets out the requirements an expert must adhere to when preparing their report.
To avoid problems at trial, you must be able to summarise your duties as an expert and comply with them. It is crucial you understand and can explain the legal tests you have applied when drawing your conclusions. Rehearsing this in preparation for trial will help avoid any problems under the pressure of cross-examination.
In Harris v Johnston [2016] EWHC 3193 (QB), the expert equated professional negligence by a surgeon with the degree of competence that had to be demonstrated to pass a surgical exam rather than asking whether a particular surgeon had fallen below the standards expected of a reasonably competent and experienced neurosurgeon operating on the patient. This error could have been avoided by reviewing the relevant legal tests with instructing solicitors in preparation for trial.
Know your specialism
Your role is to assist the court in your area of expertise, and you should be prepared to answer questions about yourself and your experience.
It may appear obvious, but it is crucial you have the expertise to comment on the issue you have been instructed to assist with and do not comment on anything outside your expertise.
The case of ZZZ v Yeovil District Hospital [2019] EWHC 1642 is a good example of where things can go wrong. In his judgment, Mr Justice Graham raised significant concerns about whether one of the experts had the expertise necessary to comment on the injuries sustained by the claimant.
He regarded the expert’s evidence that the claimant’s injury might be treated conservatively as “quite remarkable”. This was in contrast to the evidence of the other experts, who agreed that the only possible treatment for the condition was surgery.
Mr Justice Graham concluded that the expert was a “thoroughly unsatisfactory witness”. He did not regard it “safe to rely on his evidence on any issue where he differ[ed] from the other witnesses”.
In the same judgment, Mr Justice Graham praised another expert for his willingness to acknowledge the limitations of his expertise and defer to other experts when the topic took him outside of his area of specialism.
Know your role
Your role as an expert is to provide objective, unbiased evidence based on the facts available to you. Your role is not to act as an advocate or to decide the facts. It is essential that you review all the evidence available.
The case of Arskey v Cambridge Hospitals NHS Foundation Trust resulted in extraordinary criticism of the claimant’s neurosurgical expert in part for his failure to consider all the available evidence. In giving evidence, it became apparent that the claimant’s expert had failed to consider an important investigation, a lumbar puncture, which had taken place during the claimant’s treatment. The procedure had been referred to in the medical records and witness evidence.
Under cross-examination, the claimant’s expert explained that he had not received the full set of medical records. In his judgment, the judge concluded that this “did not wash”. He noted that the claimant’s expert had met with the defendant’s expert during the litigation and had therefore seen the defendant’s expert report, which set out the full medical history, including the lumbar puncture.
The judge determined that in reviewing the defendant expert’s report, it must have been apparent that the defendant’s expert had access to records the claimant’s expert had not seen. The judge criticised the expert for failing to draw this to the attention of his instructing solicitors and for “giving evidence affirming the accuracy of and correctness of two medical reports which simply did not stand up to a moment’s scrutiny, given that they had been prepared on a false and wholly incomplete basis”. While this is an extreme example of shortcomings, it serves as a reminder of some of the pitfalls in giving expert evidence that can easily be avoided.
Keep up to date
Maintaining an interest in expert and legal issues will prevent you from falling into some of the traps other experts have fallen into under cross-examination. Keeping up to date with relevant literature and on top of continuing professional development is essential as a medico-legal expert and will help you feel confident in the witness box.
Preparation is key
Know your opinion.
Good preparation for trial will prevent problems under the pressure of cross-examination. Ensuring you understand your conclusions and the reasoning you followed to arrive at them will allow you to give clear and cogent evidence when it counts. Your preparation can begin from the point of instruction. Setting out your reasoning in your report, even if it appears obvious to you as the maker of the opinion, will help your instructing solicitor understand your evidence.
It is also vital to ensure you are familiar with the literature you refer to and that you can explain its relevance to the lay advocates and judge. It is equally important that you understand your opposite number’s conclusions, how they have arrived at them and any differences in opinion between you. During cross-examination, take your time and read anything that you are asked to review carefully. If you need to refer back to something, simply ask to do so.
Know your audience
Your demeanour in court is important. Remaining calm and well-mannered is critical because the judge sees everything. Answer the questions put to you and not the question you would prefer to answer. Arskey v Cambridge Hospitals NHS Foundation Trust is an example of where this went wrong for the claimant’s expert, whom the judge criticised for avoiding answering difficult questions by straying into different areas. The judge found this was not due to the expert misunderstanding the questions but a “deliberate ploy” to avoid answering them. Embarrassingly, the expert became so flustered while giving evidence that he used an expletive.
Although perhaps counterintuitive, give your answers to the judge and make eye contact with them. Be the helpful guide and pitch your answers at the right level. Avoid lecturing or patronising, and explain your reasoning carefully and clearly.
Top tips to avoid criticism in court
Although the examples above are extreme, they help demonstrate where things can go wrong and how this can be avoided. In summary, the following points should help prevent problems at trial:
l Engage with the process from the date of instruction. Ensure you have analysed and addressed all the material provided when drafting your report. Consider whether anything is missing and, if so, ask for it. Repeat this analysis at each stage of the litigation. Make sure you have seen and reviewed everything your opposite number has seen at the time of the experts’ joint meetings.
• Ensure there are no mistakes in your report.
• In preparing for trial, ensure you know your opinion and the reasoning behind it and that you can explain it clearly. Make sure you are familiar with the literature you have referred to in your report and be prepared to answer questions about it.
• Expect the unexpected. Answer the question you have been asked and not the question you would like to have been asked.
• Don’t engage in an argument with counsel; simply answer the question. Do not be evasive or combative.
• Do not appear partisan. Always remember your duty is to the court and not to your instructing party or parties. You are an expert, not an advocate.
• Don’t be dogmatic. Concede where appropriate and don’t stick with demonstrably bad points.
v Ask for support. If you are unsure about anything, from the legal tests to how to prepare for trial, seek advice from your instructing solicitor.
You can find further information regarding our expertise, experience and team on our Clinical Negligence page
Authors
Amy Goldman - Associate
Clinical Negligence - Stewarts
+44 (0)20 7903 7917
agoldman@stewartslaw.com
www.stewartslaw.com