Mar 31 2022
How to manage expert evidence when the facts are missing?
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,