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A medical expert’s view of giving evidence in Court ……….. how to avoid digging a hole for yourself!

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Presentation on theme: "A medical expert’s view of giving evidence in Court ……….. how to avoid digging a hole for yourself!"— Presentation transcript:

1 A medical expert’s view of giving evidence in Court ……….. how to avoid digging a hole for yourself!

2 It all starts with a medical report …  There is only a very small chance that any report you write will ever result in you giving evidence in Court  Nevertheless, write it as if you will have to OR  Head it: “Draft and not for service”

3 What is the difference?  Often reports are first written without all of the evidence being available  Your expectation may be that you will be asked to revise the report at least once, if not more, before it is served  You may express an opinion that the Court will consider to be outside / at the margins of your area of expertise in the expectation that the solicitor will obtain further expert opinion  The difficulty arises when you are not asked to revise it!

4 Back to Primary School!  As leog as the fimst and lazt lefters in a womd ame corrent and the lengfh awd shape are abomt rigft, it is vemy eavy to reod senfemces thot contarn lobs of errors  Barristers just love starting cross-examination by correcting every spelling mistake they can find!

5 Medical Report – before making your report CPR-compliant and signing it:  Check carefully for inconsistencies / errors  Matters of evidence are for the Court  Be certain that every opinion you express is within your area of expertise  Do not appear partisan  If uncertain, seek advice. HOWEVER, remember that your duty is to the Court but your instructing solicitor / counsel’s duty is to their client ……….. a cautionary tale

6 Other evidence that may be relied upon in Court  Literature – make sure that you read it all, not just the abstract  Supplementary reports / letters  Discussion of experts

7 As the trial approaches ….  Conference with counsel  Witness summons – location, date, time … ?  How long will I be required to attend?  Can I control this?  Shorter is not necessarily better

8 How to prepare?

9  What reports / letters have been disclosed?  What are the main issues – why am I here??  disputes of evidence?  medical causation?  am I the reason for the case going to trial or am I peripheral to it?  Re-read the report of your opponent with particular care  Do I need a trial bundle?  Diagrams / props?  CV

10 How to present yourself?  Dr. The Rt Hon The Lord Harley of Counsel KStJ (aka Alan Blacker)

11 When? Where? Will it happen?

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13 What happens next?

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15 Meeting with counsel  Counsel / solicitor will explain the timetable  Keep quiet until counsel is ready to come to your evidence  Pay particular attention to the questions you are asked on that occasion – they are likely to be about areas where you may be vulnerable and will be cross-examined!  Usually: lay witness evidence first experts of like discipline back-to-back (claimant first)

16 Sitting in Court  Where?  Pay attention – don’t be tempted to do other things. You are probably there for a reason!  See how others are cross-examined and learn from this  Keep a note pad to hand. If you have a comment that may be useful to counsel in relation to the witness being cross- examined, write it down and pass to the solicitor. If it can wait until a break in proceedings, write it down and keep it for later  Take note of how the judge responds

17 Between sessions  Listen to counsel’s comments  Be available for questions

18 Giving evidence  Sit or stand?  Speak up, not too fast, look at the judge when replying  Evidence in chief – opportunity to correct any errors  The Court wants doctors to be doctors, not lawyers  Always remember that you are there to assist the Court – concede if you need to

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20 A few basic rules

21 Cross examination  Spelling mistakes  Credibility – CV, ratio claimant / defendant work  Answer the question you are asked!  Do so simply and honestly. Do not appear evasive  If you do not understand the question, say so  Don’t volunteer more information than you are asked for – clarification not embellishment  If the case relates to matters of evidence, make sure you know the medical records as well as counsel does

22 Tactics  Ultimately counsel’s goal is either:  to discredit your opinion  undermine your credibility by making you appear partisan  to persuade the judge that your opponent’s opinion carries more weight  To side-line your evidence

23 Tactics  You will be cross-examined the weaknesses of your argument, not its strengths  Counsel’s duty is to their client  Most barristers are not medically trained but many will have considerable medical knowledge. Nevertheless, most feel more comfortable on matters of evidence than medical opinion

24  Where is this line of questioning going?

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27 Benign – smiling death?  You will agree with me ……….. If you don’t, say so!  Gray, not black or white?  Balance of probabilities – depends on your starting point!  Helpful - confusing??

28 Petulant  Don’t be bullied. Take your time. If you want to look at an entry again, or have a question repeated, do so  Keep calm and be polite  Don’t get in a fight – if counsel is being difficult, don’t look at them at all – instead look at the papers when you are being asked the question and then look at the judge when you are responding

29 Judge’s questions  The most important of all!

30 Game-changer?  The issues that were pre-eminent before trial may not be the same once proceedings begin!

31 Moving goal posts  You may well be asked to consider matters that evolve during the trial that were not an issue beforehand

32 Part of the team?  Another cautionary tale ……………

33 After giving evidence  Use it as a learning experience  Generally the judgement is more informative!

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