Expert Witness Secrets

How to manage expert evidence when the facts are missing?

March 31, 2022 Season 4 Episode 29
Expert Witness Secrets
How to manage expert evidence when the facts are missing?
Show Notes Transcript

In this episode, we are going to explore one of the most challenging aspects that an expert has to complete when considering evidence. Now, the task quite often includes the ability to draw down an executive opinion in the absence of sometimes material facts. Now, of course, that makes your job even harder, because you're having to draw down on other aspects of your experience, your knowledge, scientific research, and whatever other forms of evidence you have been supplied with. So I believe the real benefit of being an expert witness is to utilize all of that in a way in which you would otherwise in your normal setting would otherwise be unable to. So the real question I want to address in this episode is, how do you manage an expert report, when all of the medical or all of the clinical evidence or all of the relevant evidence in your area of expertise is missing? What do you do? And I think there's three distinct ways to manage this. There's an immediate pushback to the instructing party to say “I have a wish list of items I'm going to need before I can consider accepting this instruction.” That's something I would recommend that you do if you feel that there is such little evidence that your opinion is going to be very much provisional and provide no real value to the instructing party. I do experience that from time to time and I noticed that that is something that is a discipline, because you're clearly turning down an instruction or at least deferring instruction until such point you have got your wish list, or in some cases, most of the wish list of items of evidence.

Second way to manage this is to say to yourself, “Okay, I have got some evidence here that allow me to understand some of the key facts. I'll be able to provide either a professional or a firm opinion, or, in some instances provide a range of opinions.” For example, if there's a missing image, or missing radiograph, or missing x ray, a missing piece of documentation, whatever the specific evidence is, that you feel exists because of the your interview of the claimant or perhaps other bits of information that you've been given that refer to a piece of evidence that's missing, is able to say, I will provide you with a range of opinions. So on my range of opinions will be, for example, opinion one if evidence shows X, opinion two if evidence shows why, and opinion three if evidence shows said, and then you outline what that evidence is in a list, and make it very clear to the reader that they have to provide you with that evidence and your opinions are likely to be steered in a direction. That's based on what that missing evidence shows. And of course, that gives the reader instructing party a much clearer viewpoint to say, my opinion can only go up to such a point, any further opinion regarding this matter is subject to the delivery of additional information or evidence. And of course, that will be subject to supplementary or addendum reports. A very common way I found to be able to deal with this in a really effective way allows the momentum of the initial report to be delivered. It allows the instructing party to know where they stand. And of course, it allows you to really force that thinking and be really diligent with your thinking as to the fact that you can't just stop, because you're missing some evidence. But you're suggesting that further evidence and providing the details of that is what you need in order to finalize your opinion. I think it's a very, very powerful way of dealing with those circumstances where you've got most, if not all of the evidence.

And I think the last way of the three is to say to yourself, “Okay, we have got a finite amount of evidence, I'm going to be able to provide you with a summary of my opinions.” Now, this can be done via a pro bono telephone call instructing party, or it can be done with a fee attracted via a summary or screening report. And then that summary of screening report, you can say,

In this episode, we are going to explore one of the most challenging aspects that an expert has to complete when considering evidence. Now, the task quite often includes the ability to draw down an executive opinion in the absence of sometimes material facts. Now, of course, that makes your job even harder, because you're having to draw down on other aspects of your experience, your knowledge, scientific research, and whatever other forms of evidence you have been supplied with. So I believe the real benefit of being an expert witness is to utilize all of that in a way in which you would otherwise in your normal setting would otherwise be unable to. So the real question I want to address in this episode is, how do you manage an expert report, when all of the medical or all of the clinical evidence or all of the relevant evidence in your area of expertise is missing? What do you do? And I think there's three distinct ways to manage this. There's an immediate pushback to the instructing party to say “I have a wish list of items I'm going to need before I can consider accepting this instruction.” That's something I would recommend that you do if you feel that there is such little evidence that your opinion is going to be very much provisional and provide no real value to the instructing party. I do experience that from time to time and I noticed that that is something that is a discipline, because you're clearly turning down an instruction or at least deferring instruction until such point you have got your wish list, or in some cases, most of the wish list of items of evidence.

Second way to manage this is to say to yourself, “Okay, I have got some evidence here that allow me to understand some of the key facts. I'll be able to provide either a professional or a firm opinion, or, in some instances provide a range of opinions.” For example, if there's a missing image, or missing radiograph, or missing x ray, a missing piece of documentation, whatever the specific evidence is, that you feel exists because of the your interview of the claimant or perhaps other bits of information that you've been given that refer to a piece of evidence that's missing, is able to say, I will provide you with a range of opinions. So on my range of opinions will be, for example, opinion one if evidence shows X, opinion two if evidence shows why, and opinion three if evidence shows said, and then you outline what that evidence is in a list, and make it very clear to the reader that they have to provide you with that evidence and your opinions are likely to be steered in a direction. That's based on what that missing evidence shows. And of course, that gives the reader instructing party a much clearer viewpoint to say, my opinion can only go up to such a point, any further opinion regarding this matter is subject to the delivery of additional information or evidence. And of course, that will be subject to supplementary or addendum reports. A very common way I found to be able to deal with this in a really effective way allows the momentum of the initial report to be delivered. It allows the instructing party to know where they stand. And of course, it allows you to really force that thinking and be really diligent with your thinking as to the fact that you can't just stop, because you're missing some evidence. But you're suggesting that further evidence and providing the details of that is what you need in order to finalize your opinion. I think it's a very, very powerful way of dealing with those circumstances where you've got most, if not all of the evidence.

And I think the last way of the three is to say to yourself, “Okay, we have got a finite amount of evidence, I'm going to be able to provide you with a summary of my opinions.” Now, this can be done via a pro bono telephone call instructing party, or it can be done with a fee attracted via a summary or screening report. And then that summary of screening report, you can say, “My overview is such, however, here's all of the things I'm going to need from you, in order to seriously consider this instruction.”

So there are three distinct ways I think you can deal with it. How you deal with it, it's up to you. I think it's going to come down to a perception of how confident you feel about your opinions, how defendable they could be in court if you were to be questioned upon those. And really to go back to fundamental basics on those three different methods so that you can be confident that what you are producing is as robust an opinion as you possibly can with the evidence that you've been supplied. And of course, you're entitled to access more information, more evidence, and even request it in some instances, which can be an extra layer that that evidence may not exist. And you might go ahead and say, for example, in the second method, “These are the pieces of evidence that I know exist, however, I'd recommend and would benefit from these pieces of evidence, it could be further examinations, further X rays, further assessments, further imaging,” whatever it is that you feel would be useful in order for you to to finalize your opinion and offer to the instructing party that you'd be prepared to supply a supplementary report upon review of such future evidence that doesn't even exist. So I hope these distinct ways help you think clearly about how you can manage an expert report when you don't have all of the expert evidence under you, on your desk, under your nose in front of your eyes. And make sure that you are always delivering as much as you possibly can to the reader so they can understand where the limitations of your opinion lie.


Your Host,
Dr Sandeep Senghera
https://www.linkedin.com/in/dr-sandeep-senghera/