Mark Solon interviews Nick Deal, Barrister and Head of Expert Witness Training at Bond Solon, about experts’ discussions.
What do you think about the use of discussions between experts?
I think the use of experts’ discussions is very useful. When they do work – and in the vast majority of cases they do work well – it enables the two parties to see the strengths and weaknesses in their cases. When conducted well, discussions between experts can encourage the parties to come to a realistic settlement.
Even when it doesn’t lead to a settlement, it leaves the judge with a much clearer understanding of what the areas of dispute are between the two experts. So instead of 10 areas to discuss in court there may only be one. Therefore it helps the judge and it helps with timetabling for cases because it can reduce the time needed to resolve expert witness issues.
What aspects of experts’ discussions do experts find most difficult?
It seems to be the other expert; the expert they are having a discussion with. Experienced experts, who have been through a number of discussions in the past, tell me that where things do go wrong it is usually because of the personality, attitude and behaviour of the other expert.
There can also be problems related to hierarchy based on job title and experience as an expert. This can create a background intimidation – in some instances but rarely it is used overtly – of ‘I am the more experienced expert, I know what I am talking about and you don’t’.
Do you have any examples?
One particular story is of an expert witness whose opening gambit is ‘well this is my view and I’m not going to change it. I have been an expert for x number of years, this is my view and I don’t see any reason to change it’.
Is there anything that experts can do about a difficult counterpart?
In your preparation, consider these attitudes and behaviours a possibility so they don’t come as a surprise. Remind yourself of your role and the rules: you are there to discuss the issues with the other expert, to narrow them down where possible, to reach agreement where you agree and short reasons for disagreement where you disagree.
If the other expert is being obstructive, one option is to remind them of what you are both there to do. If they are still being obstructive, challenge the behaviour.
You have an obligation to produce a joint statement and if the judge doesn’t get it then they will want to know why. The complication is that what is said in the meeting is legally privileged so it would be difficult to tell the judge about obstructive behaviour. What you can do is to offer to draft the joint statement, noting that you attempted to discuss issues but were unable to do so: if this report is shown to the other side it may lead to action and a more productive meeting.
Have you ever heard of a case where experts couldn’t agree on the issues?
Yes, there have been a few. The only ones that I have come across when they completely disagreed about everything are those ones where the other expert was misbehaving. The one that springs to mind was the case Trebor Bassett Holdings Ltd v ADT Fire & Security Plc  where no joint statement emerged because the experts just fell out in the course of the discussion. But, talking to experts, in nearly all cases, they are able to reach agreement on some issues and therefore produce a statement in the end.
Does it reflect badly on both experts if they can’t produce a statement?
It can do, yes, because judges have a basic presumption that if you have two good experts then they will be able to agree something: they cannot be irreconcilable on every issue. Even if you can’t agree, with a bit of creativity, experts can narrow the issues rather than giving up and giving the whole job back to the judge. For example, even if two experts cannot agree on a method for calculating a sum then they can agree on the sum if principles A were used and the sum if principles B were used.
What if experts can’t cover all the issues in one discussion?
In one international arbitration the experts had so many issues to work through that they ended up meeting once a week for a few months, discussing one issue per meeting. The discussion became a series of discussions and the joint statement became a series of summaries of each of those discussions. This is a great example of how experts’ discussions don’t have to be a one-hit event.
Are there any other areas that experts find difficult?
Where the experts are fairly evenly experienced, the discussion can become a point scoring exercise, sometimes because they know each other and have met each other before. The discussion can become a high level academic debate and a desire to win over each other on a point rather than discuss the issues.
Another difficult area that an expert told me about, was inequality of numbers. In this case they were acting as an expert over several different areas but on the other side there were going to be 3 experts. So when it came to the face to face discussion it was him ranged against 3 different experts on the other side. He is very experienced so he managed it very carefully: he said ‘you are welcome to attend but I’m going to meet with you individually and we will discuss individual areas of expertise, not the whole lot at the same time’.
In this particular case he also had quite a lot of grief from the other side’s solicitor who wanted to attend the discussion. I don’t know to what extent his instructing solicitor got involved but, again, he handled it. The meeting was to take place in the expert’s offices. After telling the solicitor that he couldn’t attend, the expert left instructions with reception staff not to allow the solicitor in. The solicitor duly turned up downstairs and they barred him.
I thought that solicitors would be mentioned at some point. Do you hear complaints about solicitors and the instructions?
Experts sometimes find that they and their opposite number have two very different sets of information from their solicitors. So when they write their reports, exchange reports and then come to have a discussion they realise that they are basing it on different evidence. Sometimes they are even asked to consider different issues. They are left then to try to piece together a useful agenda. It is a failing in the instructions and in the exchange and disclosure of evidence. I have only come across this in major construction cases and it could be that the issues in these cases are so multiple that it is quite difficult to ensure both parties are dealing with the same thing.
What can experts do if they realise they have received different documents or instructions?
Often they have instantly contacted their solicitors to explain what is going on, which is a good idea to keep communication open. Then they have discussed with the other expert what they can usefully do in that meeting. They have considered the additional information and – where they can consider it there and then – they have moved forward on that basis. If it needs more thought then they have called off the discussion and rearranged when both experts have had the chance to digest the information.
If the experts’ discussion takes place through a phone call or skype call then it is fairly easy to rearrange the meeting. But where a face to face meeting has been used then experts may be keen to make the most of that face to face time. They could do an exercise to work out what the differences of information are, to think through the potential impact, what each expert needs to do and agree a way forward.
Have you ever heard of expert witnesses being asked by solicitors not to reach an agreement?
There have been instances of the experts being told not to agree certain areas. This is against the rules and certainly against the guidance for instructing experts, which says clearly that experts should not be instructed not to reach agreement and should not accept instructions not to reach agreement. Solicitors may also ask you not to discuss a particular area. But if that is within your area of expertise or if it is in your report then the solicitor may not rule it out of discussion.
For lawyers it is very worrying not knowing what the experts are going to agree and not having any control. That frightens lawyers and can lead some of them to do silly things, trying to control the meeting through instructions or by turning up.
The Jones v Kaney case brought a lot of attention to discussions between experts. Can you tell us more about the case?
It all centred on the expert discussion. The case arose from a road traffic collision in 2001 where the claimant sustained physical and psychological injuries. The claimant’s solicitor appointed a consultant clinical psychologist who produced a report stating that she thought he was suffering from Post Traumatic Stress Disorder and he issued a claim against the other driver on that basis.
The district judge ordered a discussion between the experts and a joint statement. It was a telephone discussion. The psychiatrist for the defendant prepared a joint statement and the psychologist signed it without amending or commenting on it. The joint statement said that the psychological issues were nothing more than an adjustment reaction that didn’t amount to a depressive disorder or PTSD. It went on to say that the defendant was deceptive and deceitful in the reporting of his symptoms and that the experts agreed that his behaviour was suggestive of conscious mechanisms which raised doubt as to whether he was genuine or not. This was vastly different to what the consultant clinical psychologist had said initially.
When the consultant psychologist was challenged by her solicitors about how this had come about what she described was the following:
1) She hadn’t seen the consultant psychiatrist’s report before the telephone conference
2) The joint statement didn’t reflect what she had agreed in the telephone conversation but she felt some pressure to agree to the document
3) Her real view was that the claimant had been evasive but not deceptive
4) She felt that he had suffered PTSD, which was now resolved
5) She is happy for the claimant’s solicitor to amend the joint statement. However there isn’t a chance to do this as the joint statement is signed by the two experts.
These 5 points were taken from the claim form against the consultant psychologist and it is worth remembering at the time that the case went to the Supreme Court these allegations had not been proved. The Supreme Court Case was to ascertain whether, if these allegations were made out, she could be sued. In that landmark case of Jones v Kaney it was decided that experts can be sued for negligence in their work as an expert witness.
If you were to give one piece of advice to an expert about to take part in a discussion what would it be? Preparation: thorough preparation. Preparation involves a few things. Firstly, remind yourself of the rules, your obligations, and what you are there to do. Secondly, read through your own report, the other side’s report and any supporting documentation because you need to be really familiar with the whole case when you start the discussion.
Founder of Bond Solon and Chairman Wilmington Legal
Barrister and Head of Expert Witness Training at Bond Solon
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