ISSUE 53 Expert Witness Journal - Journal - Page 20
is a statement of the documents received and
considered before proffering an opinion.
determine which sequence of events you consider
more likely; however, care will need to be taken not to
usurp the court’s role.
To that end, experts should liaise with their solicitors
to ensure they have seen everything. They should update that index when they have seen additional materials, adding any new documents and checking that
documents are correctly dated and referred to. This is
particularly important in complex or long-running
cases where records will be updated and added to over
time. Experts can expect to be challenged either at
trial or with formal Part 35 questions if their report
omits reference to a key document from the index that
may otherwise have had a bearing on their expert
opinion.
In cases where there are challenging factual disputes,
it may be necessary to express your opinion with alternative scenarios, leaving the court to resolve the
disputed factual issues.
3.5 Helpful literature
Experts will often want to refer to helpful publications
in support of their expert view. Strictly speaking, there
is no need to supply freely available published literature with your reports. Any unpublished research relied upon will need to be supplied. However, because
the literature will inevitably need to be included within
the trial bundle, it is helpful to have the relevant literature provided with the report. This approach makes
it much more likely that those sources will be analysed
sooner rather than later.
In the family case of Hertfordshire County Council v (1)
Mother (2) Father [2022], the court excoriated an expert who had provided a formal medical report despite being unable to access both the imaging and the
imaging reports that were likely to be key evidence.
The expert had not made his solicitors aware that he
was unable to review all the records and, worse, had
completed the expert declaration confirming his
evidence to be complete.
3.6. Your CV
Most expert reports contain, as required, a statement
of qualifications and the current post of the expert at
the start of the report. In preparing your report, it is
helpful for a CV to be attached as an appendix. The
court will want to have a full CV available when hearing from the experts at trial and determining what
weight to give the expert evidence. You should update your CV periodically to ensure it remains current. Each case is different, but CVs are analysed by
the parties to consider your skills and experience, ie
the factors that make you an expert. Those may include matters such as practical experience of the
issue(s) in dispute, types of employment and the like.
3.3. Paragraphs and subheadings
Sub-headings are particularly useful within your
report. These will break up the report into smaller elements and allow you to address discrete issues. While
each case is different, a typical liability report may
helpfully include headings such as those in the
example below:
l Material instructions
l Documents available/index
Finally, for medicolegal purposes, you may consider
adding a section regarding the balance of your work
between claimant/defendant/joint instructions. While
it is not an essential requirement of any expert, in
Muyepa v MOD [2022], Mr Justice Cotter expressed
some concerns that the claimant’s expert (whom he
had already roundly criticised) had only ever accepted
instructions from a claimant perspective.
l Case summary
l Medical history
l Circumstances of injury
l Opinion
l Conclusion
Condition and prognosis reports or care reports will
involve many more elements, and it will be appropriate to include many more sub-headings to present
what may be a substantial body of information clearly.
Further questions?
While the content of this article is intended to provide
broad-brush guidance, it cannot be comprehensive or
address issues specific to all cases or expert disciplines.
However, you should feel supported by the legal team.
Your solicitor will always want you to present your evidence in the best and clearest way. If you have any
queries regarding the preparation of your report, do
feel free to contact them.
As noted above, it is sometimes helpful for reports to
set out a brief summary of the claim and the expert’s
findings near the start of the report. This immediately
informs the court of your view and ‘signposts’ the matters to be addressed. The report can then address the
detail. An initial summary should rarely exceed one
or two paragraphs. A short concluding section at the
end of a lengthy report is essential and can be particularly helpful if it has been necessary to consider a
range of expert opinions or alternate medical
diagnoses in detail.
You can find further information regarding our
expertise, experience and team on our Clinical
Negligence page, https://www.stewartslaw.com/expertise/clinical-negligence/
If you require assistance from our team, please contact
us.
3.4 Factual disputes: how to deal with them
Frequently, there will be a dispute between the parties
as to what occurred. This will usually be apparent
from conflicting witness statements. It is for the court,
not for you as an expert, to determine what occurred
(ie to make a finding of fact). It may be possible to
EXPERT WITNESS JOURNAL
Hugh Johnson
Partner, Clinical Negligence
+44 (0)20 7822 8051
hjohnson@stewartslaw.com
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