The Litigation Process – A Brief Overview. Giving You Confidence to Take Action.
The role of the Expert Witness
The role of the expert witness is to help a court to understand the technical issues involved in the case related to their area of expertise. Expert witnesses are used in many court cases, such as doctors, engineers, nurses, handwriting experts and many more besides. The facts of the case are determined by the court based on the arguments put forward by expert witnesses.
The overriding duty of the expert witness is to the court, not to the solicitor or the client they are representing. They are bound by the Civil Procedure Rules which they must comply with. The evidence of an expert witness has an elevated status in comparison to the evidence given by a factual witness, who is not allowed to give an opinion, unlike the expert witness.
The nursing or medical expert witness should not regard the Claimant as a patient as they are not meeting the Claimant in order to treat them or to recommend appropriate or alternative treatments; this is because they do not owe a medical or a nursing duty to the Claimant, as their overriding duty is to assist the court.
An expert witness nurse for example, may be qualified to provide an opinion and give evidence on a wide range of care issues, but may be restricted when it comes to commenting on specialist areas such as tissue viability, or cancer care. It is therefore essential that an expert witness does not stray outside of their own areas of expertise.
The Litigation Process
This is often a very frightening process for Mr or Mrs Average, many of whom have never dealt with the legal profession before. Many people are reluctant to take their complaint forward as they fear going to court, or are put off by the costs involved. Many people do not realise that they could purchase legal cover on their household insurance that will cover legal fees up to a significant amount for a minimal premium (around £10 extra a month), however the policy has to be in place for a set period (usually 90 days) before a claim can be made on it. Alternatively, many lawyers agree a fixed or a no-win no fee arrangement that may assist many to take their claims forward. A solicitor won’t usually pursue a claim (or a defence) if they have little or no prospect of winning.
The following is by no means a full and detailed account of the legal process, and it is intended simply to give an insight into the stages of the process and the involvement of the expert witness:
The first stage of the process usually involves the Claimant (or representative) meeting with a solicitor (usually the first hour is free) in order to find out if they have a claim. Evidence (i.e. medical and nursing records are gathered from the care setting(s) that the alleged incidents took place (the Defendant organisation) and an expert witness is then usually instructed by the solicitor (or a barrister) in order to examine the evidence. Once the expert witness examines the evidence they will write a report that gives an analysis of the evidence and an opinion on the standard of care provided based on that evidence (this is known as Breach of Duty). If requested, they will provide an opinion on whether or not that breach of duty caused the harm/injury that has been alleged by the Claimant (this is known as Causation). The solicitor will then decide whether or not there is a case to answer based on the experts opinion (this might involve several experts opinions, depending on the extent of the specialist areas involved in the claim).
If the solicitor decides that there is a case to answer, he will put together a Letter of Claim that is submitted to the Defendants in the hope that they will reach the same conclusions and make an offer to settle. Often the Defendant’s will deny any wrong doing, and so the case will proceed further down the litigation path. On receipt of the Letter of Claim the Defendant has a limited time to respond.
If the Defendant’s deny any wrong doing, the Claimant’s expert(s) are asked to provide an opinion on the Defendant’s defence. If the Claimant’s expert continues to have a differing opinion to the Defendant’s expert, a case conference will usually be held.
A case conference will be chaired by Counsel (a barrister employed to advise on the way forward). In attendance will be the Claimant’s solicitor, relevant expert witnesses and usually the Claimant (or representative). The case and the defence will be discussed and the expert evidence will be scrutinised by the barrister. If the barrister is satisfied that there is still a case to answer, he/she will then usually produce a document known as the ‘Particulars of Claim’ based on the expert witness evidence and this will then be lodged with the court. The barrister may decide at this stage that there is no case to answer or that any money awarded may be a lot less than the costs involved taking it further.
In the meantime, the Defendant’s may have appointed their own expert witnesses (counterparts), who will have examined the same evidence, and may well have come to the same conclusions as the Claimant’s expert evidence, and so they will make an offer to settle out of court. This decision may be reached because they feel that the allegations are indefensible, or they may consider that the financial cost or publicity is too great a risk to fight the allegations. Indeed, only 2% of cases actually go all the way to a full court hearing, and most are therefore settled out of court for one of these reasons.
If there is no offer to settle, the solicitors will then determine the areas of opinion where the counterpart experts are in dispute; these differences of opinion are put into an agenda that must be discussed at a counterpart expert meeting (without legal presence or influence). The two experts then discuss each point in turn stating whether or not they agree or disagree with each other. If they disagree they must give details of why each of them disagrees with the other. After doing this for each item on the agenda, a Joint Statement is produced and sent to both legal teams (i.e. the Claimant and Defence lawyers).
On receipt of the Joint Statement(s) the lawyers from both sides meet to discuss to determine whether or not one side has a stronger argument than the other, and an agreement reached, which will include a settlement. If an agreement cannot be reached, the case will go to a full hearing for the court to hear the facts, cross-examine the expert witnesses. The court may then find in favour of the Claimant and make an award, or the case could be dismissed.
Whilst the whole process seems daunting, you will be very well supported along the way, assured in the knowledge that you will be represented by experts in their field, who has stood up to the scrutiny of lawyers, who will then advise you appropriately and honestly. The chances of actually having to attend court is minimal.
Wynn Glencross (see Article – Resume of Expert Nurse Witness)