The Role of the Expert Witness in Personal Injury Claims

Transcription

1 The Role of the Expert Witness in Personal Injury Claims Tracey Storey, Irwin Mitchell 14 September 2017 Page 1

2 Matters to be covered (1) What makes a great expert? Litigation process Purpose of report Rules Page 2

3 Matters to be covered (2) Contents of report Amendments What lawyers want to know Joint instructions Framework Trial Page 3

4 Matters to be covered (3) Typical TBI case Letter of instruction Quantum Capacity Evidence Rehabilitation Conclusions Page 4

5 What makes a great expert? Factual witnesses no opinion Expert witnesses opinion Importance of independence Importance of experts to a case Page 5

6 Need to Understand the litigation process Be impressive as an expert Work with us Fulfil duty to help court on matters within expertise Page 6

7 Objectivity The independent product of the expert uninfluenced by the procedures of litigation Objective/unbiased Not assuming role of advocate Considering all material facts Page 7

8 Various stages Writing the report Questions Conferences Joint statements Giving evidence Page 8

9 Purpose of The Report To prove Liability Causation Quantum/value of claim Rehabilitation needs Page 9

10 Issues which may arise Report can be handed to another expert Receipt of information after report written Questions/issues falling outside expertise Can t reach definite opinion Keeps facts/opinion separate Page 10

11 Disputes Which facts more likely, improbable or less probable Subsequent information Balance of probabilities Percentage chances Page 11

12 Rules (1) Civil procedure Rules Part 36 Rules and Practice Directions Page 12

13 Rules (2) Overriding duty to the court Overriding any obligation to anyone instructing or paying Conflict of duty Page 13

14 Rules (3) Written report Written questions within 28 days of service Discuss responses Joint instruction Page 14

15 Contents of Report (1) Addressed to the court Qualifications Literature/material relied on Substance of all facts/instructions which are material to opinions expressed Page 15

16 Contents of Report (2) What facts within own knowledge Who carried out tests and examinations? If range of opinion, summaries range and give reasons for own opinion Page 16

17 Contents of Report (3) Summary Statement of truth Immunity Cost orders Very rare for report to be read in isolation Page 17

18 Amendments No distortions BUT expansive to ensure accuracy, internal consistency, completeness, relevance and clarity Page 18

19 What Lawyers want to know Assessment Recommendations Short/medium/long term Costings for treatment, hourly rates, and sessions/oversight Page 19

20 Joint Instruction Sometimes ordered/agreed Parties agree to letter of instruction Page 20

21 Medico Legal Framework Trial Very rare Work on basis Judge will read report And you will give evidence Page 21

22 Trial Report stands as evidence in chief Cross examination Re examination Page 22

23 Typical Traumatic Brain Injury Case Neurologist Neuropsychologist Neuropsychiatrist Orthopaedic Care and OT Housing Page 23

24 Letter of Instruction (1) Details of Claimant History of accident and treatment Relevant records Page 24

25 Letter of Instruction (2) Report to describe History Diagnosis Causation Treatment to date Capacity to work Capacity Prognosis Future treatment Page 25

26 Letter of Instruction (3) Potential issues Timescales Principal known issues Identify all parties Documents Have proceedings started? Directions/court order Page 26

27 Quantum General damages Special damages Earnings, care, therapy, equipment Case management, COP costs Page 27

28 Capacity (1) Capable of understanding With assistance of proper explanation from advisors Issues on which consent/decision is needed Capacity to litigate/capacity to manage finance Page 28

29 Capacity (2) Issue specific Look at particular transaction nature/complexity May lack it for one type of court proceedings Assumption of capacity Fluctuating Page 29

30 Capacity (3) Not vulnerability Impairment or disturbance of the mind Not just unwise decisions COP finance/welfare matters Page 30

31 Running a PI Case Investigations Pre action protocol Rehabilitation Serious Injury Guide Page 31

32 Evidence (1) Documents/disclosure 1. Medical 2. Social 3. Employment 4. Education 5. Case management 6. Rehabilitation Page 32

33 Evidence (2) Witness statements Friends and family Examples/anecdotes/real life Case manager Employers/fellow employees Page 33

34 Evidence (3) Expert report Other expert reports Call for documents/witness statements Page 34

35 Rehabilitation (1) What is happening? What should be happening? How's it going any good? Should it continue? Claimant engagement? Page 35

36 Rehabilitation (2) Recommendations for future Need for case management Ongoing treatment Ongoing support Page 36

37 Settlement What happens next? Ongoing management if under COP Ongoing therapies Lump sums vs periodical payments Page 37

38 Conclusions Claim process can be gruelling for those with life changing injuries Use process for rehabilitation Central role of expert witnesses in securing funds AND getting the right result in the end Page 38

39 What do Solicitors Want? (1) Objective/considered report Supported by authorities Balance of probabilities past % chance future Carefully weighed up and cogent Page 39

40 What do Solicitors Want? (2) Expert opinion on area of expertise only Separate out fact/opinion Consider range of opinion Make sure you have all evidence you need (and same as counterpart) Page 40