A medical expert’s view of giving evidence in Court

……….. how to avoid digging a hole for yourself!

It all starts with a medical report …

There is only a very small chance that any report you write will ever result in you giving evidence in Court

Nevertheless, write it as if you will have to OR

Head it: “Draft and not for service”

What is the difference?

Often reports are first written without all of the evidence being available

Your expectation may be that you will be asked to revise the report at least once, if not more, before it is served

You may express an opinion that the Court will consider to be outside / at the margins of your area of expertise in the expectation that the solicitor will obtain further expert opinion

The difficulty arises when you are not asked to revise it!

Back to Primary School!

As leog as the fimst and lazt lefters in a womd ame corrent and the lengfh awd shape are abomt rigft, it is vemy eavy to reod senfemces thot contarn lobs of errors

Barristers just love starting cross-examination by correcting every spelling mistake they can find!

Medical Report – before making your report CPR-compliant and signing it:

Check carefully for inconsistencies / errors Matters of evidence are for the Court Be certain that every opinion you express is within your area

of expertise Do not appear partisan If uncertain, seek advice. HOWEVER, remember that your

duty is to the Court but your instructing solicitor / counsel’s duty is to their client ……….. a cautionary tale

Other evidence that may be relied upon in Court

Literature – make sure that you read it all, not just the abstract

Supplementary reports / letters Discussion of experts

As the trial approaches ….

Conference with counsel Witness summons – location, date, time … ? How long will I be required to attend?

Can I control this? Shorter is not necessarily better

How to prepare?

How to prepare?

What reports / letters have been disclosed? What are the main issues – why am I here??

disputes of evidence? medical causation? am I the reason for the case going to trial or am I peripheral to it?

Re-read the report of your opponent with particular care Do I need a trial bundle? Diagrams / props? CV

How to present yourself?

Dr. The Rt Hon The Lord Harley of Counsel KStJ (aka Alan Blacker)

When? Where? Will it happen?

What happens next?

Meeting with counsel

Counsel / solicitor will explain the timetable Keep quiet until counsel is ready to come to your evidence Pay particular attention to the questions you are asked on that

occasion – they are likely to be about areas where you may be vulnerable and will be cross-examined!

Usually: lay witness evidence first

experts of like discipline back-to-back (claimant first)

Sitting in Court

Where? Pay attention – don’t be tempted to do other things. You are

probably there for a reason! See how others are cross-examined and learn from this Keep a note pad to hand. If you have a comment that may be

useful to counsel in relation to the witness being cross-examined, write it down and pass to the solicitor. If it can wait until a break in proceedings, write it down and keep it for later

Take note of how the judge responds

Between sessions

Listen to counsel’s comments Be available for questions

Giving evidence

Sit or stand? Speak up, not too fast, look at the judge when replying Evidence in chief – opportunity to correct any errors

The Court wants doctors to be doctors, not lawyers Always remember that you are there to assist the Court –

concede if you need to

A few basic rules

Cross examination

Spelling mistakes Credibility – CV, ratio claimant / defendant work Answer the question you are asked! Do so simply and honestly. Do not appear evasive If you do not understand the question, say so Don’t volunteer more information than you are asked for –

clarification not embellishment If the case relates to matters of evidence, make sure you

know the medical records as well as counsel does

Tactics Ultimately counsel’s goal is either:

to discredit your opinion undermine your credibility by making you appear partisan to persuade the judge that your opponent’s opinion carries

more weight To side-line your evidence

Tactics

You will be cross-examined the weaknesses of your argument, not its strengths

Counsel’s duty is to their client Most barristers are not medically trained but many will have

considerable medical knowledge. Nevertheless, most feel more comfortable on matters of evidence than medical opinion

Where is this line of questioning going?

Benign – smiling death?

You will agree with me ……….. If you don’t, say so! Gray, not black or white? Balance of probabilities – depends on your starting point! Helpful - confusing??

Petulant

Don’t be bullied. Take your time. If you want to look at an entry again, or have a question repeated, do so

Keep calm and be polite Don’t get in a fight – if counsel is being difficult, don’t look at

them at all – instead look at the papers when you are being asked the question and then look at the judge when you are responding

Judge’s questions

The most important of all!

Game-changer?

The issues that were pre-eminent before trial may not be the same once proceedings begin!

Moving goal posts

You may well be asked to consider matters that evolve during the trial that were not an issue beforehand

Part of the team?

Another cautionary tale ……………

After giving evidence

Use it as a learning experience Generally the judgement is more informative!