PI Brief Update

Why is it so hard for Lawyers to be organised? - Dr Mark Burgin

12/08/24. Dr Mark Burgin in an occasional series on the SRA codes of conduct considers how to organise medical evidence.

Medical evidence requires several steps to ensure that it fully addresses the issues in the court. Ensuring that all the material issues are identified can be difficult as they may not be obvious until the first expert report in the case is received. Counsel may find that they feel that they must suggest several experts in the hope that this will cover all the issues. Writing instructions can be difficult if is it not clear what will be material.

Obtaining a steer from a senior medical expert or even a basic general report may reduce the risk of embarrassment further down the line. There are substantial problems with funding arrangements if court tries to micromanage the medical evidence. This can lead in the same case to both reports of no value and gaps in the medical evidence.

Recognising that people are often disabled or restricted, that the best evidence is independent and will lead to interesting findings can improve organising medical evidence. If a medical report comprehensively addresses all the issues then things will move more smoothly. Good legal arguments will succeed and poor arguments can be discontinued if the evidence is well organised.

You consider and take account of your client's attributes, needs and circumstances.

The commonest error is to fail to consider whether the client has a disability. As most people have some functional restrictions the need for reasonable adjustments is near universal. This can be as simple as ensuring that a comfortable chair is available or a summary of the case or as complicated as arranging an intermediary.

Litigants in person rarely have the capacity to run a legal case and any barrister who becomes involved with a LiP should arrange a disability report as standard. Even with a solicitor many people in criminal or family cases will not be able to fully understand what is often a severely complex case. Physical and hidden disabilities can cause disruption to the court process and a perceptive lawyer can at least raise the issue at an early stage.

For those unfamiliar with disability analysis I would recommend reading my book. In summary a person’s impairments can cause functional restrictions to physical, psychological and hidden areas. These require reasonable adjustments to ensure that the case runs smoothly and the outcome is fair and just. As disability assessments are low cost they are almost always proportionate and should be obtained unless there is a good reason not to.

You do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.

The most common error in court is that I am called ‘the defendant expert’ or similar. I am of course an expert for the court and not either side. This error runs through the entire case with comments such as ‘that comment would not assist our position’ and ‘your report is too detailed could you please remove…’

A well organised lawyer will already be aware what the expert will likely find. They will ensure that the expert has all the evidence that they require and not try to limit the evidence for a ‘favourable’ outcome. They will recognise that the most useful expert report is one that is robust, comprehensive and balanced.

Benefit is not defined in the code of conduct but having future instructions would likely fall into this category. The expert who takes sides poses a risk to their own registration but also to the lawyers instructing them. In PI extraordinary steps have been taken to try to stop specific experts working with specific lawyers. This example should remind the lawyer of the attitude courts take of having too cozy a relationship with their expert.

Where you supervise or manage others providing legal services: you remain accountable for the work carried out through them; and you effectively supervise work being done for clients.

Case handler will often try to get a ‘good’ expert, i.e. a hired gun that will consider the evidence in the way that they want them to. When the case inevitably runs into problems another expert will be brought in to sort it out. The resulting chaos can lead to hours wasted by the second expert trying to tell a barrister that medicine does not work in the way that they are arguing the case.

The tragedy is that in trying to argue a simple but clearly incorrect argument they miss another more subtle and persuasive argument. The pleadings and the skeleton will often fail to argue the client’s best case and the barrister will be reluctant to ask for the pleadings to be amended. Judges have been known to try to assist by inviting the lawyers to argue a case that is supported by the medical evidence.

Having good supervision can avoid these issues, I often have a chat to the solicitor in charge of the case to explain why I have not agreed with the case handler’s opinions. This can ensure rapid progress towards a fair and equitable resolution of the case. Occasionally case handlers go rogue and it can take months and many cases before the extent of the difficulties is fully discovered.

Conclusions

A lawyer depends upon the evidence that they have to support their legal arguments. Poorly organised medical expert evidence can unravel attempts to progress a case. They can take the lawyers on dead ends and waste time on arguments that will fail. Although rather too often this is due to medical experts, lawyers must share the blame.

Assuming that they know more about the subject than they do and not asking for assistance risks problems. Case handlers may be poorly supervised or lack the confidence to ask for help. Some legal practices do not recognise the value of making a mistake. Instead they can encourage the case handler to get results at any cost which does not work well with medical evidence.

Many senior experts get tens of requests for advice each week and typically it takes less than 5 minutes per request. They do not charge as it is (almost) free advertising and even if it is not a subject that they have expertise they can usually help. This is arguably one of the best parts of the job as the cases always offer unexpected challenges. All lawyers should have a go-to medical expert for second opinions.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is a Disability Analyst and is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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