Presentation on theme: "A medical expert’s view of giving evidence in Court"— 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 CourtNevertheless, write it as if you will have to ORHead it: “Draft and not for service”
3 What is the difference?Often reports are first written without all of the evidence being availableYour expectation may be that you will be asked to revise the report at least once, if not more, before it is servedYou 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 opinionThe 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 errorsBarristers 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 / errorsMatters of evidence are for the CourtBe certain that every opinion you express is within your area of expertiseDo not appear partisanIf 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 abstractSupplementary reports / lettersDiscussion of experts
7 As the trial approaches …. Conference with counselWitness summons – location, date, time … ?How long will I be required to attend?Can I control this?Shorter is not necessarily better
9 How to prepare? 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 careDo 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)
15 Meeting with counsel Counsel / solicitor will explain the timetable Keep quiet until counsel is ready to come to your evidencePay 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 firstexperts of like discipline back-to-back (claimant first)
16 Sitting in CourtWhere?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 thisKeep 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 laterTake 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 replyingEvidence in chief – opportunity to correct any errorsThe Court wants doctors to be doctors, not lawyersAlways remember that you are there to assist the Court – concede if you need to
21 Cross examination Spelling mistakes Credibility – CV, ratio claimant / defendant workAnswer the question you are asked!Do so simply and honestly. Do not appear evasiveIf you do not understand the question, say soDon’t volunteer more information than you are asked for – clarification not embellishmentIf 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 partisanto persuade the judge that your opponent’s opinion carries more weightTo side-line your evidence
23 TacticsYou will be cross-examined the weaknesses of your argument, not its strengthsCounsel’s duty is to their clientMost barristers are not medically trained but many will have considerable medical knowledge. Nevertheless, most feel more comfortable on matters of evidence than medical opinion
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 PetulantDon’t be bullied. Take your time. If you want to look at an entry again, or have a question repeated, do soKeep calm and be politeDon’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