Expert Witness and Instructing Solicitors: The Working Relationship

Related Sector: Expert Witness

Introduction

In the foreword to The Bond Solon Expert Witness Survey 2023, written in association with The Law Society Gazette, Founder Mark Solon commented that "experts and solicitors must have a close professional relationship to work together effectively where issues in dispute need expert opinion’’.

It’s a fitting statement. A large part of the 2023 survey concentrated on the working relationship between experts and their instruction solicitors, and it is worth paying close attention to these results.

Expert Witness - Providing Adequate Instructions

Out of 581 expert witnesses surveyed:

• 396 (68.16%) experienced being instructed on a case where it became apparent that the materials that they were provided with were insufficient/incomplete, and/or they were not provided with the same materials as their counterpart.
• 363 (62.48%) experienced being instructed on a case where they were not given enough time to prepare their report and felt pressured to adhere to very tight timescales.

Solicitors face many pressures in everyday practice, including high volume and unpredictable caseloads, tight time pressures, internal targets, and demanding clients.

However, the Guidance for the instruction of experts in civil claims is clear on how instructions should be provided to experts. As a bare minimum:

“Those instructing experts should ensure that they give clear instructions (and attach relevant documents), including the following:

1. basic information, such as names, addresses, telephone numbers, dates of incidents and any relevant claim reference numbers;
2. the nature of the expertise required;
3. the purpose of the advice or report, a description of the matter(s) to be investigated, the issues to be addressed and the identity of all parties;
4. the statement(s) of case (if any), those documents which form part of disclosure and witness statements and expert reports that are relevant to the advice or report, making clear which have been served and which are drafts and when the latter are likely to be served;
5. where proceedings have not been started, whether they are contemplated and, if so, whether the expert is being asked only for advice;
6. an outline programme, consistent with good case management and the expert’s availability, for the completion and delivery of each stage of the expert’s work; and
7. where proceedings have been started, the dates of any hearings (including any case/costs management conferences and/or pre-trial reviews), the dates fixed by the court or agreed between the parties for the exchange of experts' reports and any other relevant deadlines to be adhered to, the name of the court, the claim number, the track to which the claim has been allocated and whether there is a specific budget for the experts’ fees.”

Expert Witness – Independence Compromised

Some experts have been placed in situations where their independence has been compromised. For example, almost half (48.88%) experienced solicitors making ‘suggestions’ about the content of their report that have a ‘subtext of pressure’ to produce a favourable opinion. 55.59% have come across counterparts who regularly give an opinion that is favourable to their instructing solicitors regardless of the evidence, while 41.65% have come across solicitors who only instruct experts who will give favourable opinions.

Instructing solicitors (and indeed expert witnesses) face considerable pressure to obtain a favourable result for the paying clients. However, Practice Direction 35 of the Civil Procedural Rules is clear on the expectations that the court has of experts when giving evidence during litigation:

Rule 2.1 states that ‘expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.’

Rule 2.2 states that ‘experts should assist the court by providing objective, unbiased opinion on matters within their expertise, and should not assume the role of an advocate.’

There are also similar requirements for independence in the Criminal Procedural Rules and the Family Procedural Rules.

Experts and Solicitors – The Working Relationship

To provide more context on these survey results, we spoke to members of the expert witness community about some of the difficulties they have faced when working with solicitors.

1. What are some of the common challenges you face when working with instructing solicitors?

One main challenge was the quality of the records provided by the instructing solicitor. Expert witnesses reported receiving records in the following conditions:

• Incomplete.
• Chaotic, or unpaginated.
• In a format that could not be easily assimilated into the expert witness’s report (ie, photocopied, or as a PDF that couldn’t be copied and  pasted).
• Incomplete record sets. For example, not supplying the complete medical records, but providing a summary written by the instructing solicitor – which introduces bias. The expert witness notes: “I have also found that these summaries tend to gloss over information that may not be favourable to their case. One of the big law firms that instructs me chose to exclude the social work entries in the notes (including notifications to child protection) in their summary.”

2. Can you provide an example of when you felt pressurised by an instructing solicitor to change your evidence or prioritise one conclusion/opinion over another?

Expert witnesses reported the following examples of such pressure:

• “A solicitor decided not to instruct me as, in her view, I wasn’t likely to be ‘Claimant-orientated’ enough (because I do a mix of Claimant and Defendant work, rather than just Claimant work).”
• “Counsel once applied some pressure to persuade me to change my view about whether GPs could rely on a secretary to send a referral letter urgently – although, to be fair, Counsel did provide a caveat to say that was my view, but he disagreed with it (but he is not a GP).”
• “I have been asked not to mention things in my report that I thought were relevant (and would in any case likely come up in an experts’ discussion, or at trial). “

3. Can you provide an example of when you felt that the quality of your evidence or your experience of giving evidence was negatively impacted by the conduct of your instructing solicitor?

• “Not so much tight deadlines, but slowness in providing extra information that hasn’t been supplied in the first place. I now list all the information I haven’t been able to access (or that hasn’t been provided) which I think is relevant and if this is particularly important to my opinion, I will comment on this.”
• “Other issues include electronic links to documents that don’t work properly, and difficulties in tracking down an admin person who can send a link that works.”
• “Occasional unreasonably tight deadlines imposed.”
• “Common to have missing documents.”
• “Common that I am not told if cases have settled.”

4. What do you think needs to change to improve the overall working relationship between solicitors and experts?

• "I would prefer a single expert system akin to the family court, where the court instructs rather than the plaintiff /defendant solicitor. I think it is very difficult not to have some form of bias towards the [instructing] party despite good intentions to not be biased and understanding the responsibilities of the expert."
• "Transparency in instructions would be useful. Also, an understanding of what can and can’t be reasonably answered. The field of psychiatric injury appears to be largely unregulated, and I often read some very poor reports from my colleagues who are out of date in their knowledge, and where there is no basis for their opinion. One problem is that the instructing solicitors are not experts and have no idea that the opinion given is bad medicine."
• "Prompt payment is another issue. I find the large firms specialising in civil litigation are the worst offenders."
• "Sometimes my invoices are challenged by the instructing solicitor. I pride myself on doing a good job and providing a comprehensive assessment. I am not sure that the time I have taken is always well understood or valued by the instructing solicitors – especially when matters are complex."
• "Better understanding of each other’s roles."
• "Better provision of records (especially with the 20-page limit coming in)."

Summary

The working relationship between an expert and their instructing solicitor is a significant one. Not least because if the relationship breaks down, or if there are issues with, for example, communication, time-management, presentation, and incomplete paperwork, it could lead to detrimental consequences for the paying client.

While the results of the Bond Solon Survey 2023, and this article, highlight some of the challenges that experts face when working with instructing solicitors, and where improvements can be made generally to strengthen and solidify the working relationship, it is only a starting point. Both experts and solicitors must take practical steps to increase lines of communication, better understand each other’s roles and the pressures or challenges that they face, as well as ensuring that they always remain compliant with the law.

Author: Meera Shah