Wednesday, 25 June 2014

Meetings of Experts - Facing the Fear

  • Meetings are designed to identify points of agreement and disagreement
  • Meetings are not mini-trials
  • Agendas are not to be used for leading questions or cross-examination
  • A standard form of preamble and guidance to experts should be agreed for use in clinical negligence claims
  • If an expert significantly alters his opinion or gives an opinion which was not in his report, questions ought to be allowed

Discussions or meetings of experts are a crucial part of clinical negligence litigation. One of the first documents a trial judge will turn to is the experts' joint statement. Agreements recorded in joint statements are effectively set in stone. Experts' meetings terrify litigators.

For a control freak litigator - and many litigators fall into that category - preparing for and reading the report of meeting of experts is a traumatic experience.  They are scarred by memories of experts, robust in conference and on paper, making vital concessions when in one-to-one discussions with their opposite number. They worry that experts will feel intimidated about speaking their minds in a meeting (see Hubbard-v-Lambeth [2001] EWCA Civ 1455), will horse-trade with a view to avoiding trial, will be unprepared or will use loose language which might be disastrous for the case. They are bitter that the experts themselves are unaffected by the consequences of these calamities - as claimants and their lawyers see their financial dreams crumble, or defendants and theirs see their expectations of triumph turn to dust, the experts walk away from the wreckage, fees paid, sometimes seemingly unaware of the carnage they have wrought.

So expert witnesses should understand why they are inundated with pre-meeting correspondence and provided with twenty page agendas complete with preambles and footnotes. Such zealous preparation is a response to past experience. Experts may not understand why lawyers are so exercised with the use of the word "would" over "could", "mandatory" over "advisable" etc. but everything can turn on those details. The litigator has a heightened sensitivity to every nuance at the time of the experts' meeting. Nothing can be missed in preparing the ground.

What litigators want is for their own expert to stand firmly to his existing evidence and the opposing expert to cave in. Is that a realistic expectation? And is this attempt to exercise control over the meeting misplaced? What is the point of a joint meeting if there is no opportunity for changing opinions and if the experts simply re-state the opinions given in their reports? Do we really want experts to have a meeting in order to produce a Scott schedule setting out the contents of their written evidence (as care experts very often do). The experts are, after all, reporting to the court. If their discussions produce concessions, clarification and changes - if they narrow the issues - that is right and proper. Better that they bend or bow at this stage than in the witness box at trial.

As a lawyer acting for a client, I want to help that client secure the best possible outcome from their case. As a lawyer looking at the system of resolving clinical negligence disputes as a whole I wonder whether it is time to take stock of how these meetings are managed.

The rules are straightforward and the practice direction clear.

When joint meetings were first introduced it was suggested that lawyers might be present to guide the discussions. This never caught on. You can envisage an LA Law/Ali McBeal scenario where a meeting of experts is continually interrupted by lawyers seeking time out to have private discussions with their own expert, interventions to object to certain questions being asked etc. Sensibly the practice direction foresees that problem and provides that:

9.4 Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions.

9.5 If the legal representatives do attend –
(i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and
(ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives.

I have not had one case in which lawyers attended a discussion between experts. Indeed most "meetings" are, I believe, held by telephone and the practicalities of at least two solicitors or barristers joining in would be difficult to manage. Instead, perhaps frustrated by their lack of direct involvement, lawyers seek to control what happens at experts' meetings by producing long and detailed agendas. 

Agendas for meetings in clinical negligence cases are now standard practice. In my experience (and this is partly a plea of mea culpa) they have become increasingly lengthy, repetitive and detailed.  It is not at all uncommon for parties to fail to agree on the contents of the agenda. It is irritating for all concerned when that happens. The result is often that two agendas are presented to the experts, causing confusion and risking inconsistency in the responses. Negotiations as to the contents of agendas have become unedifying trials of strength.

As a result, I have seen several cases where the agendas have clearly got "out of hand". They become substitutes for examination in chief and cross-examination. I confess to having conducted cross-examination by agenda myself. The meeting is not a substitute trial as the practice direction makes clear:

PD 9.3 provides that:
Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.

So agendas are not always necessary but where they are deployed the practice direction should be borne in mind. Perhaps the following guidance would assist in reducing the length of agendas and helping the experts.

1. An agenda for a meeting is a list of topics for discussion not a series of tightly worded sequential questions. My dictionary defines "agenda" as a "plan of things to be done or topics to be discussed". Can you imagine an agenda for a board meeting, which comprised questions such as "bearing in mind the economic data published on 1 April, the likely outcome of the recent productivity drive and any other circumstances you think relevant (stating what those circumstances are and why you believe them to be relevant) on the balance of probabilities should a pay rise be (a) offered to or (b) discussed  with the assistant manager? If so, what level of pay rise do you say should be offered or discussed, setting out your reasons." No, an agenda for a meeting would simply say: "Assistant Manager's Pay for 2014-5". 

2. List the issues which are in dispute (to which the experts' specialist knowledge is relevant) and those which are already agreed. The purpose of the meeting is to determine whether there is agreement or disagreement on those issues which remain in dispute. Once the issue for discussion is identified on the agenda, any questions should be directed to determining whether there is agreement between the experts on the issue or, if disagreement, the reasons for the disagreement. The agenda should not be designed to test out the opposing expert or to help your own expert. 

3. The experts should be provided with a copy of the relevant provisions of CPR Part 35 and the Practice Direction. Guidance as to the mechanics of drawing up the statement, quoting and producing published papers etc. is also useful. If an expert has referred to academic papers in his report, copies must have been provided to the opposing expert before the meeting so that discussions can include them.

4. The provision of an agreed, short statement of the tests for clinical negligence and causation, where appropriate to the issues in dispute, is very helpful.

5. It would be extremely useful if the NHSLA, MDU, MPS and say APIL or other claimant representative bodies could agree a standard preamble and briefing for experts' meetings. This would include a short statement of the legal test for negligence, causation etc. It could include standard advice about the mechanics of the meeting, and set out the relevant rules and practice direction. Experts will not thank lawyers for a three page analysis of what constitutes negligence, but a short and accurate statement which can be used in all cases would be very helpful. At present this is subject to agreement between parties on a case by case basis. Recently it seems to have become a matter of considerable dispute. That seems to me to be a waste of time, money and effort which an agreed standard form would save.

6.  Ensure that each expert has seen the same documentation (witness statements, other experts' reports etc.) Perhaps a file containing relevant documentation can be agreed, prepared and given to the experts prior to the meeting.

7. Consider the order in which meetings should be held and whether one pair or group of experts may need to consider the joint statement of another pair or group before holding their meeting.

8. Consider whether there is merit in experts from different disciplines meeting together, particularly where their fields of expertise and the issues on which they are giving opinions overlap or interrelate.

9. Remind the experts that if an expert does make a significant concession they should explain why they have done so: PD 9.8 provides that if an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.

The way the rules on Pt 35 questioning are framed, it is not clear that questioning should be put after an experts' meeting is reported. Questions are allowed to be put to an expert "about his report" and within 28 days. The statement following an experts' meeting is perhaps not a "report". That seems unduly restrictive, particularly if an expert has changed his opinion or has given an opinion on an issue on which he has previously been silent. Questioning would then serve to clarify the issues and evidence. Sometimes parties agree directions in advance which allow questioning of experts after the joint statement. Perhaps Part 35 should be changed to allow that to be standard practice where an expert has given new or significantly altered evidence in a joint statement.

Whatever approach litigators choose to take to discussions between experts, they will always be times of heightened stress and fear.

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