The Expert’s Declaration, Part 35, the practice direction, and the Protocol for Instruction of Experts to give Evidence in Civil Claims.
Sometimes it helps to begin at the end. At the end of your medical report, you will have to make a Declaration. There is a form of words you must use, the latest version being:
- I understand that my duty in writing this report is to help the Court on the matters within my expertise. I understand that this duty overrides any obligation to the person from whom I have received instructions or by whom I am paid.
- I confirm that (a) I understand my duty to the court, and have complied with that duty; and
(b) I am aware of the requirements of Part 35, this practice direction and the Protocol for Instruction of Experts to give Evidence in Civil Claims. - I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made a false statement in a document verified by a statement of truth without an honest belief in its truth.
This is no empty declaration. There are examples where doctors have been found to be in the wrong, resulting in fines of tens of thousands of pounds, or imprisonment, for contempt of Court.
You may be a top expert in your field. That is not enough. You have entered the legal arena, and you must abide by its rules. To do that, you need to know what they are. You must read the requirements of Part 35, the practice direction Part 35, and the Protocol for Instruction of Experts to give Evidence in Civil Claims.
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35/pd_part35
The Letter of Instruction is a guide to the issues your medical report must cover
The Letter of Instruction (LoI) is an important document and you should not proceed without having read it to the end (where the sting sometimes is). You must fulfill the instructions given to you & answer the questions that were put to you in the Letter of Instruction. You may have read them or something similar many times before, but do not ignore what they say. Check the LoI again when you think you have finished – often you haven’t! The instructions & specific questions represent the essence of what the lawyers require of you, and if you give good, full, & honest answers, you have done your job.
The art of report writing is to produce a report that is comprehensible to a lawyer & and critically – to the Judge. Remember your duty is to the Court, and it is to this entity that you must address your report; but it is the Judge you are really addressing. Your duty is to the Court, not to the solicitors instructing you.
Don’t waffle, and think carefully what you are saying before committing it to paper. Lawyers have a nose for inconsistency, ambiguity, & hot air, and will have no hesitation putting you on the spot. It is their job to pare away the dross in the evidence to expose the kernel of truth that decides the case. Don’t contribute to that dross!
Structure your report in a logical way so that information is accessible.
Your report needs to be structured (to be comprehensible), comprehensive, impartial & internally consistent. Preferably it should be short as possible, but without leaving anything out that is important!
This is no easy task, and brings to mind Blaise Pascal’s famous remark (translated): ‘“I have made this longer than usual because I have not had time to make it shorter.”
The critical thing for you to understand at the outset is the distinction between FACT and OPINION.
It is entirely the Judge’s role to determine the FACTS of the case, where they are disputed. It is your role to give a logically coherent OPINION from the viewpoint of an impartial Trauma & Orthopaedic expert based on the apparent course of events, your specialist medical knowledge, and references from the medical literature.
The ‘facts’ in the case may not be disputed, but sometimes they are. This is more likely to arise when some records or other evidence has gone missing. If you can foresee that there are versions A, B, & C of events, say if and how the Court’s decision on each of these would affect your opinion. ‘If the Court decides A, then my opinion is X…If the Court decides B, my opinion is Y’ …The Court will not interpret this as vacillation, and will appreciate that you are trying to assist without assuming the Judge’s role!
Part of your role is to make it obvious or state what the important facts are that lead you to your opinion. The references you use are part of this, and any that you mention or rely on must be submitted to the Court with your report. If the Court can understand the internal workings & logic that lead to your conclusion, it will better understand how & why one or other determination of fact will affect your opinion. It will also be more likely to accept your opinion if it can understand it.
Let us go back to those disputed versions A, B, & C. If you anticipate this situation, you cannot decide for yourself that only A is correct, and opine only for that scenario. Don’t get invested in one version, remain impartial, help the Judge. You must state what you consider are the possible scenarios. You should then say if the clinical features favour A, B, or C as being correct. Or could any of the versions be correct from the T&O perspective? Or does some incontrovertible clinical fact nearly rule out version C?
Don’t go out to bat for either side; maintain impartiality.
A short note on impartiality. If you start at the beginning of your report calling the Claimant ‘Joseph’, but by the end it is ‘Joe says this happened, but that didn’t’, the Court might get the impression that you have become pally with Joe and may have lost your faculty of critical appraisal. In the text of your report you should use ‘The Claimant’ (always with a respectful capital C). This shows your respect for the Court process and your role within it, and will go some way to avoiding the perception that you have not maintained the necessary distance & impartiality.
I hope you can see what I’m getting at here. You should illuminate the options from the medical perspective if you can, but stay in your lane.
Then you give your opinion (diagnosis, condition & prognosis) for each scenario. Your opinion may or may not be affected by whether the Judge decides A,B or C is the correct scenario. If so, say so; this is important information for the lawyers.
That is enough on this topic for now. In Part 2, I shall turn to the structure of your report, using a tibial fracture as a typical example.