Expert Witness Secrets

In this episode, we are going to explore one of the most challenging aspects that an expert has to complete when considering evidence. Now, the task quite often includes the ability to draw down an executive opinion in the absence of sometimes material facts. Now, of course, that makes your job even harder, because you're having to draw down on other aspects of your experience, your knowledge, scientific research, and whatever other forms of evidence you have been supplied with. So I believe the real benefit of being an expert witness is to utilize all of that in a way in which you would otherwise in your normal setting would otherwise be unable to. So the real question I want to address in this episode is, how do you manage an expert report, when all of the medical or all of the clinical evidence or all of the relevant evidence in your area of expertise is missing? What do you do? And I think there's three distinct ways to manage this. There's an immediate pushback to the instructing party to say “I have a wish list of items I'm going to need before I can consider accepting this instruction.” That's something I would recommend that you do if you feel that there is such little evidence that your opinion is going to be very much provisional and provide no real value to the instructing party. I do experience that from time to time and I noticed that that is something that is a discipline, because you're clearly turning down an instruction or at least deferring instruction until such point you have got your wish list, or in some cases, most of the wish list of items of evidence.

Second way to manage this is to say to yourself, “Okay, I have got some evidence here that allow me to understand some of the key facts. I'll be able to provide either a professional or a firm opinion, or, in some instances provide a range of opinions.” For example, if there's a missing image, or missing radiograph, or missing x ray, a missing piece of documentation, whatever the specific evidence is, that you feel exists because of the your interview of the claimant or perhaps other bits of information that you've been given that refer to a piece of evidence that's missing, is able to say, I will provide you with a range of opinions. So on my range of opinions will be, for example, opinion one if evidence shows X, opinion two if evidence shows why, and opinion three if evidence shows said, and then you outline what that evidence is in a list, and make it very clear to the reader that they have to provide you with that evidence and your opinions are likely to be steered in a direction. That's based on what that missing evidence shows. And of course, that gives the reader instructing party a much clearer viewpoint to say, my opinion can only go up to such a point, any further opinion regarding this matter is subject to the delivery of additional information or evidence. And of course, that will be subject to supplementary or addendum reports. A very common way I found to be able to deal with this in a really effective way allows the momentum of the initial report to be delivered. It allows the instructing party to know where they stand. And of course, it allows you to really force that thinking and be really diligent with your thinking as to the fact that you can't just stop, because you're missing some evidence. But you're suggesting that further evidence and providing the details of that is what you need in order to finalize your opinion. I think it's a very, very powerful way of dealing with those circumstances where you've got most, if not all of the evidence.

And I think the last way of the three is to say to yourself, “Okay, we have got a finite amount of evidence, I'm going to be able to provide you with a summary of my opinions.” Now, this can be done via a pro bono telephone call instructing party, or it can be done with a fee attracted via a summary or screening report. And then that summary of screening report, you can say,

In this episode we're going to explore all of the key themes and lessons that I took away from attending the interesting and vibrant annual witness conference held in November 2021 in central London. The day was a combination of networking, key lessons, and some excellent keynote from Sir Geoffrey Vos, as well as an opportunity to check back in with other experts to see how they were managing with the impact of the pandemic, the way in which this has changed their workflow, the way in which they changed their approach towards their clinical career, a lot of doctors, including some that are listening to this podcast, are clearly having a reset of their thinking in terms of how they want to balance their their work life. So huge philosophical takeaways, I think, for me, and I want to share now more specific lessons learned from each of the parts that I feel are really useful to take away. 

Covid has forced a change for good. 

This change would otherwise take decades if market forces, lobbying and legislation, ran its natural course. 

In this episode, we explore the changes to the medical legal systems that has created immediate changes , intermediate changes and a course correction to the future path. 

Expert witnesses have a unique position in the medical legal system. It is a subtle but very powerful distinction from other forms of evidence that are presented within a civil hearing. 

We will talk more about Lord Hodge’s keynote from the Expert Witness Institute Conference in this episode.

There are five top myths that are present in expert witness work that I want to debug or  unwrap, and give you the other side of the equation so that you make your own decisions whether these are genuinely myths or facts or whether these are making the waters muddy for you. So I'll do my best to debunk them. 

This list of five comes primarily from my discussions with expert witnesses over the years, and a lot of them are continually coming up with the same types of issues. So when I refer to the myth, this might resonate with you immediately or it might need some consideration to think how it's really held you back from either expanding or starting your expert witness work. 

First on my list is that expert witness work takes a lot of time. There's this sense of overwhelming amounts of evidence and workload that's going to sort of creep into your already busy schedule. And in doing so, you're going to find that you're going to be completely overwhelmed and not be able to make any progress. So I want to give you the the other side of the equation where the expert witness work is organized and systemized based on your existing spare capacity. I use ‘spare’ quite loosely because that is up to you to define capacity in your diary. It is very much based on how structured your time is. I believe that with the correct structure, the correct approach, and the correct professional attitudes towards this type of work will limit the amount of time you need to spend doing this type of work, to the extent where it can be part and parcel of your working week. I think anything between two to five hours a week is at the sort of medium to upper end of capacity requirement for someone who does this on a fairly regular basis rather than sort of ad hoc work from time to time. Of course, that should be the aim for you if you're looking to create a regular stream of work or a regular stream of income and to become more and more invested in this type of work. 

Next up on the list is the ethical issue. So the myth here is that the expert witness work is unethical.. There's that unfortunate interpretation that some might have about expert witnesses that you're doing some harm or you're doing something that's untoward. And I really want to dispel this myth head on because this is absolute nonsense. The expert’s duty is to the cause, and to remain fiercely independent. They are there to look at complex detailed information which cannot be deciphered by a judge, by a solicitor, or by a lay person. You are in a very privileged position to be able to help the courts understand complex matters in simple and easy to understand words and in easy to understand explanations. That is your role. You are there to help, essentially, the legal system to reach its decision regarding justice and your ability to provide independent evidence. Constantly remind yourself that your duties to the court will never make your work unethical, in my view. 

Next up on the list is that there's a limited amount of work out there. This limited mindset is a real dangerous part of anything that somebody who is outside of the realm of employment is facing. They're talking themselves out of opportunities to expand themselves, both in their career in terms of their income and in terms of their view of the world. In turn, your ability to improve your everyday practice in your area of expertise. It's important to look at the facts that just in the UK alone, the clinical negligence and personal injury market is a multi billion pound market. This is a multi million billion dollar industry in one developed country. So if you've been dabbling or you've been considering this, look at the facts, do some research, find out how big the market is, and ultimately, ask yourself what is your contribution going to be within that market, and how much of that market share do you w

In order to understand some of the motivation behind what leads to patients starting the litigation process and suing their doctors, I want to draw upon my personal experience as an expert witness, along with my personal experience as a patient, and put in a situation where I was considering litigation. And I want to combine those two together to give you the experience of what's really getting down to the absolute core of frustration and anger, that often is the precursor or the motivating factor to initiate litigation in the first instance. So let's think about this for a moment. We've got a doctor on the one hand, who's got tons of experience and knowledge, picking up huge amounts of knowledge on their journey in their careers as a doctor versus a lay person who might have access to Google, colleagues or friends that have had similar procedures or similar experiences. And they're comparing notes, and they're looking online. Let's be frank, that's what they're doing right now. And they come up to this whole process for treatment with that level of knowledge versus what doctors have, in comparison, a huge disparity, a huge gap, between the two. And just by acknowledging that, in the first instance, will make us understand why there's such a vast amount of litigation in medicine today. This disparity of knowledge is going to be one of the key factors when a patient doesn't understand or does not feel like their opinions have been heard. They are going to feel like they were having treatment done to them rather than being part and parcel of the consent collecting process. The valid consent that a patient needs to provide in order to have treatment is a combined interaction and communication between two people that leads to an understanding to an extent to which they can make an informed decision. That is a process. The real harsh reality is that for the most vast majority of clinicians, there is inadequate resources and time to be able to collect that informed consent to be able to obtain that from a patient in a way in which they truly have provided an informed decision. And that we've got to accept that this is where we are today. There's a huge amount of underlying issues with regards to lack of resources, lack of time to be able to do this process. And that's not going to be one of the key factors. It's led to a huge amount of litigation right now. So I think to address that well as identify it is to be able to acknowledge that the communication, the consent process has to be of a really high an increasing quality as your practice evolves, so that your patient is truly making an informed decision understanding the benefits and risks of each of the alternative treatments, and making a decision based on that. So my personal experience was that the consent part of the process for a surgical procedure was obtained about 30 minutes before my actual procedure for which I was going to be put under general anaesthetic. So I am lying in a hospital bed, about to have a procedure. And I've been presented with a four or five page detailed consent form. Now, that is, at the time, something that I thought was the process, that's just the way that these things are done. And the post operative experience that I had was terrible. There was a huge delay to recovery based on the information I've been given. And so I was looking back to the point at which I consented to the treatment and thought, was I truly involved in all of the risks, but was all the risks of this procedure explained to me at a point in which I could consider them not an hour before the procedure, but that's days or weeks beforehand, to decide that something that's a risk I'm willing to take versus the benefit of having that particular procedure. And the answer was no, I didn't have that. I didn't see this particular pro

There are multiple factors to consider when obtaining valid consent from a patient. In my view, the most important aspects to consider are ensuring that you've got all of the alternative treatments documented and shared with the patient prior to the commencement of treatment, that obviously forms the backbone, these multiple treatment choices were potentially possible. But the depth to obtain valid consent is ensuring that the patient understands the risks and benefits of each of the treatment alternatives. This is where consent can become quite complex in nature. If you start to envisage them from the patient's perspective, as long as they are feeling like they are being involved in the decision,  once they've got an understanding of the treatment options available to them and they're then aware of the risks of each treatment option and they're willing to accept the risks associated with the treatment option that they prefer, we're still moving slowly and surely towards the stages, if required to get informed consent. And I think these form the key factors, so that patients feel like they're part of the process. And they are part of the decision making process in particular. The challenge, of course, is most doctors have a very limited time to be able to have this discussion in detail. A lot of the consent process is done with the aid of consent forms. Of course, the challenge with a consent form is that it is usually quite complex and difficult for a patient to understand. Just by simply getting a signature from a patient doesn't necessarily demonstrate, retrospectively, that valid consent was obtained. In my opinion, the key parts to demonstrating that valid consent was taken is the number of stages that were involved. It might start with a high level discussion, information leaflets, recommendations for the patients to either speak to family and friends about the decision, or possibly do their own further reading around it, subject to your advice, so that they can get a better understanding. Of course, nobody can make decisions instantly or even on the same day. We all need time to consider the treatment options. For the purposes of thinking about your process of obtaining valid consent, put yourself in the shoes of a patient and consider a treatment outside of your area of expertise. For example, if you're an IT specialist, think about giving consent for an orthopedic procedure. If you're an orthopedic surgeon, think about having a dental procedure and think about all of the things that you would like to know, within that area that's outside of your area of expertise. Before you were able to make a decision, you'd want to know what the alternatives are. You'd want to know which recommendation that the actual provider of the care is suggesting. In the context of the alternative, they might say we think Option A is the way to go. But this is weighed up against the risks or benefits of option B, C, and D, so that both parties are actually making a decision. The biggest problem I've seen from consent not being valid is that the patient feels like things were being done to them as if they felt like they weren't part of that process. And it goes to an even more philosophical level that the patient doesn't feel like they were heard, they didn't feel like their position, or their feelings, or their interests were put forward. They were rather just told you're going to have to have this procedure done and sign this piece of paper, and we'll get it done. That's not valid consent. Although it might feel like you've got a signature. Think back to the last time you've hired a vehicle from a car rental company. Do you ever feel that you've truly understood all of the risks and benefits and risks associated with hiring a car when you're presented with a 10 or sometimes small print three or four side document that will go through all the disclaimers and all of the the finer details associated with the rental of a car. You may

Our Podcast guest is Ben Parry-Smith, a leading lawyer in family law. He's well recognized in this profession and ranked by legal 500 as the next generation partner. Ben has been a partner at Payne Hicks Beach since 2018, 10 years after qualifying as a lawyer. He presented at the Bond Solon annual witness conference 2021. 

Today’s discussion is aimed at establishing primarily how to strengthen that relationship between an expert witness and instructing party as much as possible to leveraging all of Ben's years of experiences practicing in matters, which often involve relationships falling apart. 

One of the key parts that I've taken away from listening to him in the past is the dating process. Ben explains that this is the stage where the solicitors are reaching out to try and find an expert that's appropriate for whatever area it is they need expert assistance in. As an expert, a compelling up-to-date CV that sets out your experience is really important. A solicitor is far more likely to instruct an expert that's keen and efficient. He should be able to respond to the solicitor’s enquiry, they don't have any conflict of interest, the area of expertise is absolutely on point, can do the work properly within timescale, can attend court on the dates that are set out, and a good fee estimate. 

Consider it as sort of like a service level. When you're going out there to obtain a quote for anything, you are subliminally making conclusions about the service that you're likely to get based on the quality and depth of interaction at that very early stage, almost like the dating process, where you try to make a lot of conclusions from the first or second date. It’s that first impression, putting your best foot forward and trying to make yourself appealing. If you can't respond to inquiries in a prompt manner, you're probably going to be in a situation where you're going to be delivering the report late and you're probably going to be unresponsive to a number of things. It's almost like a check in with yourself if you can't put yourself in a position, maybe because you are beyond capacity with other commitments. If this becomes part of your career, it has to be treated with that level of professionalism and time of day or week and not just squeezed in between all your other commitments. Ben adds that if you can't do it, respond quickly to the solicitor or perhaps recommend someone that has the capacity to do it, someone you trust.

I've noticed from working with lawyers outside of expert witness work that when I've asked, for example, for some expertise in Europe, and the solicitor that I would perhaps consider in the UK isn't available, they refer colleagues. It’s probably unlikely that there will be a  referral fee but the goodwill that comes out of that type of communication resonates with you for a long time afterwards.

Ben says that it’s important that an expert is really responsive, who quickly gets back to the solicitor, and advises if they can't immediately do the work and provides the time when they can complete it. It's all about managing your clients expectations. That way of communicating quickly and setting expectations is really helpful.

From a personal perspective, when I look at the time between receiving instruction and looking deeper into the court suggested timelines, and all of the other parts of litigation that they're often months ahead of when you're delivering the report. So there's almost this self reflection of I must do everything instantly. Otherwise, I'm not really serving my instructing party. 

I learned about the 10 steps to creating a successful relationship from Ben. We did not have the time to go through all 10 today but these are his top three.

1. Having realistic expectations.&l