What to expect when you are instructed by a solicitor

As an instructing solicitor Dr Jock Mackenzie highlights the details experts should expect to see in letters of instruction, and why any omissions should be raised early on. 

The 2014 Guidance for the Instruction of Experts in Civil Claims document, which accompanies Part 35 of the Civil Procedure Rules, says that before instructing an expert it is important to establish their expertise and experience, their familiarity with the duties of experts, their ability to produce a report and deal with questions within a reasonable time and at proportionate cost, their availability to attend trial, and the absence of any conflict. 

In my view, there is a fairly standard process that should be followed in an expert’s instruction. My experience is as a claimant clinical negligence solicitor, but the principles are largely referable to all experts. 

The nature and terms of an expert’s appointment are usually initiated by way of a letter of approach prepared by the instructing solicitor. Assuming the appointment is agreed, this is followed by the letter of instruction, which sets out the scope of the instruction. 

These are important documents which, prior to any work being carried out, set out the basis upon which the expert will be acting.

The letter of approach should usually contain the following:

1. The prospective parties’ names (or the actual parties’ names if proceedings have been issued), and the names of any key personnel in the history, so that the expert can identify from the outset whether there is any obvious conflict.
2. Which party the instructing solicitor acts for; importantly, is the expert being asked to act in a single joint expert (SJE) capacity?
3. A short summary of the case and issues that the expert is being asked to address, so that the expert knows whether they are a suitable expert or whether the case falls outside their remit and areas of expertise.
4. A short indication of the anticipated nature of the expert’s instruction, for example whether the report is to be a report on breach of duty, causation or condition and prognosis, etc.
5. An anticipated timeframe for the report, including whether there may be any degree of urgency, for example because the case is coming up against a limitation deadline or is in a court timetable. 
6. It can usually be assumed that the expert’s role will include answering questions, attendance at conferences and court, etc., but this may benefit from confirmation.
7. The letter will usually require that the expert provides to the instructing solicitor certain documents or information to assist with the latter being able to ascertain the suitability of the expert for formal instruction. These requests will typically be for:
   a) An up-to-date CV, from the perspective of both the expert’s medical background and medicolegal experience;
   b) Up to date terms and conditions (T&Cs), upon which the retainer will be based, including hourly rate, travel costs, cancellation charges, fees for court attendance, etc. It is worth noting at this point that it is possible that the solicitor may ask for an estimate – or even a quote – to ‘cap’ the potential fees. In such a scenario, the expert may wish to see the formal instructions and gain an understanding of the extent of documentation before committing to an agreed fee;
   c) The split of the expert’s work between claimant and defendant, as it is generally deemed important for experts to act for both sides, as this can be demonstrative of a balanced, impartial approach;
   d) How many reports the expert prepares every year’; and,
   e) Whether the expert has ever given oral evidence at trial or other tribunal, as the solicitor my want to know whether there have been any judgments involving the expert, whether positive or adverse.

Even if the expert is deemed suitable in principle, there may still be some negotiation over the T&Cs before formal instruction can take place. However, this is a huge subject in its own right and beyond the scope of this article. Nevertheless, once the T&Cs have been agreed to the satisfaction of both expert and solicitor, then the formal letter of instruction can be issued.

The instruction letter is more detailed and sets out the scope of the expert’s instruction. Much as with the letter of approach, this letter should set out clearly at the beginning who the parties are and what the expert’s role is. 

In my view, the letter should then address the following:

1. It should contain all documents and information that is likely to be relevant to the expert’s role. Depending on exactly when in the proceedings the expert is being instructed, broadly these will usually include:
   a) Court-related documents, such as pre-action protocol documents, statements of case and orders, and in particular the order for directions if the expert is being instructed after the first case management conference; 
   b) Factual evidence, which should include medical records (in personal injury cases), factual witness statements (either drafts or exchanged), evidence from other sources such as internal inquiries, root cause analyses, the post-mortem report in a fatal case, accident reports, police reports, etc. Quantum experts will require quantum factual documentation, too, for example care and case management records, therapist records, etc.; and,
   c) Expert evidence from other relevant experts, e.g. a causation expert will ideally want to see the breach of duty expert report.
2. The letter should then set out the history and relevant chronology in detail, initially as ascertained from the medical or similar records, including the relevant past history, the presenting history, the index event(s) and all relevant details. However, it should also contain reference to the witness statements and any other potentially relevant evidence as mentioned above, e.g. internal investigation documents, inquest documents, etc.
3. The letter should then draw attention to any pertinent discrepancies in the evidence and factual disputes where the expert should opine on each scenario.
4. Having identified the evidence to the expert – while noting that what evidence is relevant to the expert’s opinion is ultimately a matter for the expert – the most important element of the instruction letter is then the specific questioning, which delineates the scope of the expert’s instruction. These questions will set out what the instructing solicitor is seeking from the expert. There are a few points to make about them:
   a) The questions should be sufficiently detailed and clear that the expert is able to understand the scope of the instruction; if any questions are unclear, the expert must not hesitate to raise the issue with the instructing solicitor to obtain clarity before answering them;
   b) Some questions will likely be broad, open questions; others will be narrow, closed questions: both are fine, but an expert should not feel obliged to answer a question which is outside their remit or which they do not feel either able or comfortable answering; and,
   c) Questions posed are not usually intended to be exhaustive but more as a guide to the issues in the case; if the expert identifies other issues in the case which the solicitor has not mentioned in the questions, it is pertinent for the expert to raise them. 

After the questions section, it is usual to have an administrative section, reminding the expert of the matters that they need to consider when preparing their report, particularly for a CPR-compliant report. My personal practice is often to include a short summary document for the expert which sets out the relevant law, practice and procedure, primarily as an aide-memoire and checklist. I conclude my letters by explaining that the expert can ask any questions before finalising their report. 

In order to avoid the need for major amendments resulting from any misunderstanding, experts should always raise areas of concern, confusion or doubt with the instructing solicitor early on in the instruction process, so that wrinkles can be ironed out before the report is drafted.

Between the combination of the letter of approach and the letter of instruction, the role of the expert and the nature, scope and terms of their instruction should be clear and agreed, so no significant issues should then arise from the preparation of the report. 

Dr Jock Mackenzie is a partner on the medical claims team of Anthony Gold Solicitors