What is the Problem with Amending an Expert Report?

by Giles Eyre, recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London

It has recently been reported that a survey of experts found that nearly a third of medical experts and a quarter of all experts overall felt under pressure to change their evidence by their instructing solicitors in a way that they saw as damaging their impartiality (Times, 8.11.18, www.bondsolon.com/media/16939 2/expert-witness-survey-report-2018.pdf). At the same time nearly two-thirds of experts thought that the courts struggled to understand their evidence. I suggest that these two reported perceptions of experts might well be connected.

The Guidance for the Instruction of Experts in Civil Claims is clear about amending reports. Paragraph 65 states: ‘Experts should not be asked to amend, expand or alter any parts of reports in a manner which distorts their true opinion, but may be invited to do so to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. Although experts should generally follow the recommendations of solicitors with regard to the form of reports, they should form their own independent views on the opinions and contents of their reports and not include any suggestions that do not accord with their views.’

It is likely therefore to be quite proper for a solicitor to request an expert to make amendments to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues in the case. Experts should however form their own independent views as to the contents of their report. This latter provision is quite reasonable if, and only if, the expert has a full and proper understanding of the requirements of court expert report writing.

The problem facing lawyers in preparing their cases for court is that, unfortunately but not surprisingly, in the absence of adequate training and an independent certification system to ensure and identify properly trained and truly competent court experts, very many reports do not serve their purpose well.

The purpose of an expert report is of course to assist the court with matters within the expert’s area of expertise.1 To do that the expert must provide evidence in a report in a manner which its anticipated audience, of lawyers, judges etc, can understand in the absence of their having the expert’s expertise. Further the report must address the issues which the court has to address, which are likely to be very different from the issues the expert normally addresses in the expert’s ‘day job’ away from the role as a court expert.

The report must also comply with the requirements of the appropriate court or tribunal procedure rules. For example in the case of a civil claim, not only must the expert read, understand and comply with the Civil Procedure Rules and the Practice Direction but also the Guidance. Pursuant to these ‘rule books’ the report is required to include the substance of all material instructions, the expert’s qualifications (and in particular any with special significance to the case in hand) and the substance of all material facts and identify where they come from. In addition, where there is a range of opinion (which there frequently is) then the range must be given, if there are factual disputes then opinions need to be given on each factual scenario, the report needs a summary of conclusions and the expert must indicate that he or she has understood the expert’s duty to the court and complied with it. If this is a sequential report, then any rules as to sequential reporting must be complied with. 2

To be practical for the use of litigators and courts and tribunal alike, the report must be succinct, focused and analytical.3 It must identify the material facts, explain the reasoning process applied by the expert, and so deliver a conclusion that can be assessed by someone without the expert’s expertise and compared with any alternative conclusion reached by an other similar expert.

Finally the report must apply (and should be seen to apply) the legal tests relevant to the purpose for which the report is required. If it is to report on standard of care, then it must provide a conclusion applying the appropriate test for that, such as ‘the standard fell below the standard reasonably to be expected of a reasonably competent expert in that field’, if on quantum, the report must address the loss or injury caused by the breach of duty which would not have occurred but for the breach of duty, and must address the reasonableness of any proposed remedial action or treatment. And overlying all of this, the re port must apply the appropriate standard of proof.

The difficulty facing lawyers on a daily basis when they receive the expert’s draft report is that so many expert reports do not comply with these requirements. The requirements are onerous, as is the role of a court expert, but are there for a purpose, and yet very many reports fail to demonstrate a proper understanding of these requirements or the reasons for them.

Problems are caused for the lawyer by the different failures that occur in complying with these requirements, such as a failure to identify, from the mass of facts related (unnecessarily) in the report, which facts are material; or the unnecessary overloading of a report with non-relevant material such as extensively citing the contents of witness statements which all parties to the litigation and the judge would prefer to read in the original and not have repeated by the expert; or the inclusion of a long list of entries in records or correspondence which, while they may ‘tell the story’, do not take the report any further, and make understanding the reasoning in the report that much more difficult; or the failure to explain the reasoning process by which the conclusion is reached, and the material facts on which it is based; or an inaccurate expression of the legal test relevant to the expert’s report; or the use of unexplained technical language or the presumption of greater knowledge or understanding on the part of the audience than is reasonable. Often confusion is caused where the structure of the report chosen by the expert, while adequate for providing a single opinion, is inadequate to deal with the situation where several opinions are required to be given.

Despite the temptation on the part of the lawyer sometimes simply to discard the report and the expert, neither the court’s approach to changing experts nor the economics of litigation make this the practical solution.

It is hopefully now clearer to the reader why it is that experts are frequently asked to amend or change their reports to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. With a lesson in appropriate report writing skills most experts can understand why it is necessary to do that which is asked of them, but giving that lesson should not be the role of an instructing lawyer or barrister. Many experts feel uncomfortable in rewriting or restructuring their reports at the request of their instructing lawyers because of a lack of understanding of the requirements of report writing and a misunderstanding of their role as independently minded experts. For the same reason some take criticism of their reports as pressure to change their opinions where what the lawyer is much more likely to be seeking is a comprehensible, effective and compliant report.

This is not to ignore that due to the pressures on lawyers, financial and reputational, to win there are some who may be prepared to use pressure to assist them in that cause. But a properly trained expert who understands what the law requires should find it straightforward, when there is a request to amend a report, to distinguish between the appropriate and the inappropriate request. I doubt strongly that this survey is identifying the true incidence of such improper pressure.

References

1, See for example CPR35.3 and PD35

2.2 in civil claims 2, Guidance para 63 in civil claims

3, Harman v East Kent Hospitals NHS Trust [2015] EWHC 1662

Article by Giles Eyre 2019