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Bond Solon and Inspire MediLaw – leading expert witness training companies - hosted their annual medico-legal conferences in November and December 2023. Partners Mark Burton and Joe McManus presented at the events in order to share their thoughts on what defendants look for when selecting and instructing experts and to promote our sector to the next generation of clinicians for succession and future-proofing.
Looking back over the various talks across the two events, we have identified some recurring themes that provide an interesting insight into the challenges facing the expert witness market and the opportunities for claims professionals to adopt fresh approaches for better outcomes in the future:
Instruction of single joint experts to increase
A single joint expert (SJE) is an expert instructed to prepare a report for the court on behalf of two or more of the parties to the proceedings.
The expert witness market has been adversely impacted by factors including costs reforms, retirement of experienced providers, insufficient new providers and a post-COVID-19 backlog. As a consequence, purchasers are experiencing service issues including long waiting times for appointments, high fees and some low quality reports.
The SJE model offers various solutions including the mutual benefits of saving time, avoiding duplication of expert costs and sparing the claimant from multiple examinations.
However, the SJE route is a legally riskier option because the SJE is conclusive, without the flexibility of different opinions or the opportunity to discuss the contents of the report in conference with the expert. Nevertheless, the parties can mitigate such risks by mutually selecting the right SJE.
We predict that SJE instructions will increase, for reasons of capacity and efficiency.
Criticism of experts with an insufficient balance of experience
Some recent High Court judgments have strongly criticised experts whose only experience is acting for one side of the personal injury market. Practitioners should now be actively seeking a balanced split of claimant and defendant instructions if they want to avoid forensic arguments for their expert opinion carrying less weight.
Our anecdotal experience from engaging with practising experts at the conferences was that a 100% claimant split can be circumstantial, because the expert started doing that work and built a caseload, and is very interested in undertaking defendant work but does not know how or where to easily source it. We even met some experts who had a claimant weighting for personal injury cases, but a defendant weighting for clinical negligence cases. We would definitely encourage a more open mind to expert selection if a particular expert has a strong professional CV and a reasonable explanation for any adverse split, in order to widen the pool of providers, find new talent and alleviate capacity issues.
Ongoing debate: should experts be independently accredited?
There is no legal definition of what constitutes an expert witness and no legal requirement for experts to undergo formal medico-legal training or qualifications before taking on such work.
There have been several recent judgments in which experts have faced judicial criticism. From being inadequately qualified, being considered insufficiently independent, or failing to comply with their duties and responsibilities, this begs the question: should experts be independently accredited?
In a survey commissioned by Bond Solon, 79.35% of the respondents considered it essential that practising expert witnesses are registered with a recognised professional body and/or regulator and hold a current membership/registration with that body/regulator.
On the one hand, there is support in Part 35 of the Civil Procedure Rules and the Civil Justice Council guidance. Professional regulators such as the GMC or GDC also oversee the ongoing training of their members. On the other hand, there are arguably two overarching problems that crop up in the case law, namely that the wrong expert is instructed or the expert has not fully understood their duties. Accreditation of every individual giving evidence may reduce, if not prevent these issues arising.
The new intermediate track
On 1 October 2023 a new rule introduced the intermediate track for cases valued between £25,000 and £100,000 in England and Wales. Any expert instructed in a claim which is allocated to the intermediate track will be limited to producing a report which is no more than 20 pages. This is of concern to some experts in terms of potentially compromising the quality of their expert evidence.
Although the 20 page rule does not apply to the fast track or to cases valued over £100,000, this may change in the future. We welcome an appropriate limit on report length, because in our experience too many expert reports contain long chronological summaries of medical records and insufficient analysis and professional opinion. There is existing case law guidance to that effect, which is not followed enough and has necessitated a formal rule change to streamline the process.
An increasingly artificial intelligence driven world
As technology advances, the use of artificial intelligence (AI) in the legal system is making vast strides. In the UK, Lord Justice Birss said he used ChatGPT to summarise an area of law and assist with part of his judgment. However, he noted that this exercise was well within his own area of expertise, such that he could assess the information ChatGPT generated and identify potential inaccuracies.
AI also presents opportunities to support experts in their medico-legal practice. The ability of AI to process substantial amounts of information quickly and accurately makes it an attractive tool for tasks which require extensive data analysis. However, to realise these benefits requires users to think critically about how to use AI safely, ethically and effectively. Experts should consider:
- The need for vigilance;
- That they will undoubtedly be placed under greater scrutiny as data becomes more freely available, allowing for patterns and trends to be identified; and
- Training in and understanding of the technology and AI relevant to their area of expertise.
Comment
Whilst the expert supply chain is challenging, some problems stem from inflexible dependence on traditional providers and methods of working. There are good opportunities for expert innovations and efficiencies if practitioners are prepared to experiment for longer-term gains, including by insisting on shorter-form and more focused reporting, by defendants instructing experts with a historic claimant weighting (and vice versa), and by proposing SJE in appropriate cases.
United Kingdom