PI Brief Update

Masterclass in Chaos: The Joint Conference - Dr Mark Burgin

10/06/24. Dr Mark Burgin discusses the importance of a functional system for producing independent and accurate joint expert reports, ultimately serving the purpose of a just legal system.

The case is straightforward, the experts are both engaged and understand each other’s opinions, all that is needed is to write a joint report. The barriers to achieving their goal of an independent report addressing the material issues can be extreme. The problem is not down to any failure of the experts’ skills or determination but unnecessary obstacles.

When lawyers collaborate with experts the processes run smoothly but with shrinking funding and structural changes in law firms this rarely happens. The experts are left trying to sort out everyone else’s problems and given little or no support. Requests for action are often ignored and what little assistance is available makes things more difficult.

Things have worsened over the decades I have been working but there are many good and hard-working lawyers who still hold on the old values. They however admit that it is simply not profitable to work in that way and have resigned themselves to making a loss. Their dedication in the face of an industrialisation of the law reminds me that humans are still an essential part of the process of justice.

The Agenda

Agendas often appear to be written by a junior case handler and lack any understanding of the case or the legal principles that they must follow. The questions are often leading, biased and repetitive. They contain grammatical errors and ambiguities which further confuse the issues. Any attempt to challenge the agenda is met by a blanket statement ‘this has been agreed by both sides’.

incomplete agendas cause significant difficulties because although there is usually a section for ‘other issues’ this makes the joint report difficult to follow. Irrelevant questions similarly can lead the experts on a wild goose chase discussing issues that are not material to the case. Both problems increase the length and complexity of the expert’s response.

Fallacies are the biggest challenge because if unrecognised they will mislead the court. The risk is that if the experts answer the question the reader will take the opposite meaning to the one intended. To properly answer the question the experts will need to re-write the question and explain why the original question was misleading all adding to the length and the complexity of the report.

Legal tests

Experts will typically rely upon the legal practitioners for guidance as to the right test. Where a case handler has used for instance the test ‘possible’ rather than ‘on balance’ this can lead to difficulties. The experts may understand that ‘possible' is not a recognised legal test but with more complex tests may get confused. In many cases this will lead to discussions but sometimes will get missed.

Where the agenda contains errors in law the experts will often lack the confidence to challenge the lawyers. Experts have training in law and are well used to using the common legal tests but if instructed to use an incorrect legal test can have problems. Some experts will try to use the incorrect test feeling that they must do what they are instructed to do even if it is wrong.

Lawyers will rarely indicate where a legal test comes from making it difficult for the expert to check. It is not uncommon for the lawyer to misquote the law meaning that the expert must try to find the origin themselves. This increases the pressure on the experts and in trying to tackle errors in law.

Material Evidence

Both sides commonly fail to disclose material that they have access to which makes it more difficult to proceed. Although the material is eventually provided it can take weeks of wrangling to get access. This slows the joint conference and means that the final report cannot be agreed. Often the experts have to give two opinions depending on what the missing evidence says.

Specialist experts have often been poorly instructed so that they have not dealt with the issues. Although many specialists instruct themselves to address the material issues this can be challenging. This can lead to unfortunate comments such as giving opinions outside of their expertise on the other expert’s report.

Solicitors often see ‘their’ experts as not needing to discuss inconsistencies in each other’s reports. Just as two experts of the same discipline may not fully understand each other’s reports so can experts of different disciplines. This means that issues of causation can fail to be properly addressed because each expert leaves the issues to the other.

Conclusions

Many experts and lawyers will argue that these problems are not new and things are no worse than they ever were. It is true that there never was a golden age and there have always been problems. What has changed is that the problems are no longer aberrations or errors, they are part of the system and the way it is designed.

Previously this work was performed by lawyers who had the ability to do a good job even if they were flawed. Now the work is performed by case handlers who have not got the legal training to do thing right. Previously lawyers would have a chat to the expert to sort out a difficult issue, now the case handlers do not need to understand what they are doing.

My criticism is not of the individuals who usually work hard within their capabilities or of the designers of the systems who do their best to create a one-size-fits-all approach. My call to action is to bring the legal system into the modern world. Get rid of siloed ‘claimant and defendant’ experts, we are all just experts for the court.

Increased funding is unlikely so instead give experts tools so that they can challenge effectively and extend CPR35.14 to allow requests directions from barristers. When an expert uses CPR35.14 the court should write to the expert, not provide an answer only to the lawyers. Openness, transparency and communication should be central even if that means having to introduce penalties for lawyers who keep their experts in the dark.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

Image ©iStockphoto.com/Igor Kutyaev