This is the thirty-ninth in a series of Case reports and Commentaries from Professor Koch and colleagues.
Legal Mind Case and Commentary No. 39
There is now a wealth of literature to document the merit and value of experts being directed by the Court to meet and prepare a joint statement to clarify issues of agreement and disagreement in particular personal injury cases (Koch, 2018; Eyre, 2021). The ground rules for the process of preparing a joint statement are straightforward and logical. Applied correctly, they result in a greater clarity and completeness of opinion than any one expert’s report alone, and reflect one of the explicit advantages of the adversarial approach to resolving cases.
Gordon Exall, in his excellent Civil Litigation Brief, reported (2021) on a judgment Aderounmu v. Colvin [2021 EWHC 2293 (QB)].
Master Cook (the presiding Judge in this case) was determining issues in a clinical negligence action and, in particular, issues of capacity. He observed that the joint reports submitted were ‘largely unhelpful’ in part due to the following factors: –
1. Excessive and unhelpful detail which required clarification and did not aid the understanding of key issues
2. One-sided arguments in which the experts reinforced their instructing parties’ respective positions, rather than help the Court to understand the issues on which the experts disagreed.
Those who remember their childhood English exams will recall being asked to ‘precis’ a section of text. This skill is invaluable when discussing and writing a joint statement draft with the opposing expert.
The skill of reviewing two independent opinions about some aspect of injury, and logically assessing and concisely stating the extent of agreement, is a helpful intervention to aid the Court. Similarly, the awareness of any disagreement encourages the experts to understand, and therefore clarify for the Court, the myriad of reasons for such disagreement.
A well-constructed and brief joint statement is invaluable to the Court and is aided by a positive communication style by both experts (Koch et al, 2021(a)).
The following ground rules improve the quality and utility of the joint statement: –
1. The overall aim is to clarify each expert’s opinion and the extent of agreement and/or disagreement that exists between their respective opinions.
2. Where there exist areas of significant disagreement, the aim is to then illustrate how the disagreement can be understood and why it has occurred.
3. In advance of preparing the joint statement, the two experts should discuss these areas of agreement and disagreement, with the ultimate intention of providing, ‘without prejudice’, a useful precis of their joint opinion
4. The two experts should draw as much as possible on their extensive clinical and medico-legal experience to explain to the Court via the joint statement how any disagreement in opinion has come about and its significance for the resolution of the claim in question.
5. In particular, the joint statement should:
a. Resolve any confusion, such as issues of semantics or interview techniques, which may have resulted in the appearance of disagreement.
b. Set out, clearly and concisely, the experts’ differences in opinion and their reasons for maintaining their own opinion in light of another expert’s alternative view
6. The experts should ensure that their input into the final joint statement is consistent with their original opinions as stated in their first reports disclosed to the Court. Or, in the event that their opinion has changed, they should set out their reasons for any change of opinion.
Following these ground rules should result in a joint statement which coherently, concisely and usefully addresses the Courts need for clarity upon a given set of questions.
The preparation of a joint statement is a relatively unique process , primarily operating in the UK civil jurisdiction, and is an effective and excellent aspect of the civil procedural rules.
Prof. Hugh Koch, Dr Michelle Potts and Dr Georgina Browne are all members of HK Associates.
Professor Koch is visiting professor in Law and Psychology at Birmingham City University.
Dr Friso Jansen, Senior Lecturer in Law at Birmingham City University.