PI Brief Update

Expert: Failure to Engage - Dr Mark Burgin

04/09/24. Dr Mark Burgin describes the common techniques that experts use to avoid engaging with the issues in a legal case

All experts have cases that they find difficult and regret agreeing to accept instructions for. Sometimes this is due to the behaviour of the lawyers, others it is that they doubt the veracity of what they have been told and sometimes they are out of their depth. The expert may decide to disengage form the process in the hope that it will go away.

The common approaches to avoid engaging have not changed in several decades but are not always easy to spot. Often the only clue is a feeling that the expert has not really answered the questions. Often to the expert’s relief the lawyer will give up trying or run out of steam but occasionally this issue spills out into the court process.

Overcoming the resistance of the expert to engage with the issues is generally better than trying to punish the expert. Understanding the reason behind the expert’s resistance and helping them find a way around is preferrable to making complaints. The carrot is usually better than the stick.

Delay

Most experts will prioritise tasks that they enjoy over tasks that they have to do. Although some experts particularly those in clinical practice are literally working every hour most experts have discretionary time. They could consider the lawyer’s request on the weekend or at the end of a long day. They are likely to ignore requests that ask them to work for nothing or appear overcomplex.

Increasing use of service level agreements (SLAs) has reduced delay as a method of disengagement. This has had a perverse impact on the response times to requests, whereas before the expert would answer urgent questions rapidly now there is no way of hurrying up the expert. All cases treated with the highest urgency even though lawyers may take months to get round to responding.

If further pressure is put upon the expert to overcome delays then the expert will use another technique. Often delays are necessary to allow the expert to properly consider the issues and create a detailed but concise report. The chance of poorly spelt and hurried wording making the report less useful will increase as pressure increases.

The correct approach with an expert who uses delay is to be clear about reasonable timescales. The expert then knows that there will be consequences such as disruption to the court if targets are missed. Equally the lawyer will be more able to challenge the expert who provides a poor-quality report saying that they had plenty of time to write it.

Irrelevant content

A report may be lengthy and contain lectures about the case without actually dealing with the issues. The reader can become overwhelmed with the amount of words so that they cannot see what is missing. The leading law firms use audit reports to analyse whether the expert has complied with their duties. Smaller firms usually rely upon a case handler’s knowledge of the subject.

The report should be laid out logically and in sections so that the expert’s reasoning can be followed. This approach makes it clear what has been addressed and what has not been. Experts will often use rambling answers instead as they are difficult to follow and can avoid answering the question. It is much more challenging to write concisely than have a general discussion.

Another common approach is to answer a different question that has a more favourable answer. It is not unknown for lawyers to proceed with a case where the report is actually negative. Few experts will address issues if they have not received instructions to do so. It is worth looking back at the instructions and checking if they contained all the material issues.

Recognising that problems with the instructions can be the reason for a failure to engage allows a compromise to be found. The lawyer can work out what went wrong with their instructions and apologise for their error. The expert can be asked to address the updated instructions and neither side needs to lose face.

Failing to follow the legal requirements

The expert must be independent and give the same opinion whoever instructed them. This is a hard requirement and it is usually easier to work out the correct answer and then explain how the court should decide. Arguing the case in this way potentially usurps the court’s role but also fails to engage with the evidence.

The expert may refuse to answer questions that challenge their decision because they consider it to be irrelevant. They may change their arguments when challenged so protect their decision of how the case should be decided. They may even refuse to address evidence that does not fit with their views.

An example of this approach is to say ‘the medical records state he did not raise other symptoms’. This is factually correct but the case was that the doctor failed to make adequate records. In this example the lack of reference to other symptoms is evidence of the doctor’s failure to record relevant negatives not that those symptoms were not mentioned.

The lawyers can indicate the legal requirements and ask the expert whether they wish to amend the wording. In the above example this would be to offer the more neutral ‘it is not recorded that he raised other symptoms in the medical records’. This allows the expert to engage with any ranges of opinion.

Conclusions

All experts will have, at some point, used the above approaches to avoid engaging with a case. I do not criticise experts who use these techniques as they are the tricks of the trade. If a lawyer recognises that an expert is not engaging then it is better to collaborate than try to punish.

Where the expert has not been given sufficient time to address complex issues or has been asked to work for free then the lawyer can find a compromise. Where the expert has not addressed the material issues then reconsidering the instructions can allow a way through. Where the expert is failing to follow CPR35 then a careful explanation of the law may assist.

There are rare cases where the expert does not have the correct experience or is unwilling to provide a proper report. The lawyer may need to work with their expert to ensure that that they make their limits clear within the report. The expert may need to be given sufficient encouragement and support so that they can work through the necessary steps for a satisfactory outcome.

Doctor Mark Burgin, BM BCh (oxon) MRCGP 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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