As part of a series of three articles by the Clinical Negligence Team focusing on the preparation of medical expert reports, Hugh Johnson looks at report preparation and presentation. Later in the series, we will examine the content of reports, addressing liability, quantum and condition/prognosis report writing.
As experts in your respective fields, I am conscious that many readers will be familiar with the process of report writing and preparing reports for the Court. However, all experts preparing reports for the Court are likely to find it worthwhile revisiting the Court requirements for expert reports from time to time in order to remind themselves of the requirements and to evaluate the format and presentation of your reports
Whilst there is some evidence of an increase in the number of injury claims progressing to trial (i), most litigation settles before that stage, with only around 4% cases resulting in a contested trial (ii). With that in mind, the form of your expert report is critical to ensure that your evidence is presented as effectively as possible. Frequently, claims are settled after exchange of expert reports and, on occasion, even without expert discussions taking place. The content of a good expert report therefore may make the difference to how each party evaluates their prospects of success and, potentially, the settlement value of the claim.
In a long report of 20 to 50 pages it can be easy for even the best evidence to be ‘lost’ due to simple errors such as omitting a case summary from the start of the report or failing to include a clear summary of opinion at the end of the report.
The rules relating to expert evidence are contained within Part 35 of the Civil Procedure Rules (CPR). When instructed by Stewarts, all experts will receive within the body of their letter of instruction details of the core elements of those rules, together with a link to the Ministry of Justice website (iii) which contains the full rules and practice directions.
I have set out below two of what I have called the ‘core principles’ of expert evidence, before turning in more detail to the form and content of report writing.
1. Core Principles
1.1. Report for the Court
The first principle of expert evidence is that irrespective of who instructs the expert, the expert should be able to opine independently and prepare their report for the benefit of the Court (CPR 35.3). This rule is intended to prevent experts from being partisan on any issue or, worse, being perceived as a “hired gun” with an opinion for sale. The evidence contained within your report will, in effect, be ‘owned’ by the Court, which can order disclosure of both the report and the letter of instruction, if necessary. A final report should always be addressed to the Court.
Advisory reports (i.e. prepared solely for Stewarts and not intended for disclosure) enjoy a separate status, which will be addressed in the next article in this series (liability reports). However, for the purposes of this article, all experts should be aware that a first draft of their report (which may be prepared with incomplete clinical records or before they have had the benefit of discussions with fellow medical professionals) should usually be marked for litigation advice purposes and addressed to Stewarts.
1.2. Within your expertise
The second core principle when it comes to the preparation of an expert report is to ensure that the evidence is limited to your field of expertise (iv). As such, if you are minded to provide any general comment on issues that relate to other disciplines (and that may be best avoided), it is important to qualify that view by deferring to the discipline of expert that may assist the Court with a further and more comprehensive expert view.
2. The format of your report
Most lawyers will have a view as to what constitutes a ‘good report’, i.e. one that is clearly presented. However, provided the Court rules are met, there is a reasonable degree of freedom when it comes to the format. This note is intended to be a cross-check to assist you in preparing your report and ensure that it is well-structured.
2.1. Practice Direction 35
The starting point is the Court requirements as set out in the Practice Directions to Part 35 CPR. These requirements include essential points, such as the duties set out below:
- to set out the nature of your qualifications;
- to set out any examinations or tests undertaken;
- to set out any range of opinions on the subject;
- to give reasons for your opinion;
- to confirm that you have understood and complied with the Court rules; and
- to provide a Statement of Truth.
The above points are, in my experience, generally met with the expert reports that I see. For clarity, it is my view that expert reports should also mirror exactly the requirements of the Court documents that will be prepared by the legal team. In that way you can ensure that your report is clear. Those requirements are set out in Practice Direction 5A.
2.2. Practice Direction 5A
Practice Direction 5A concerns the preparation of Court documents generally. This part of the Court rules provides that documents should be produced:
- On A4 paper;
- With a 3.5 cm margin;
- With consecutive page numbering;
- With numbered paragraphs; and
- Have all numbers, including dates, expressed as figures.
The above requirements are relatively straightforward and probably obvious. It is much harder to refer the Court to specific paragraphs or even sentences of your report if the pages and paragraphs are not numbered clearly. Ideally, page numbering should be at centre bottom or in a top corner of the page. That is my preference because trial bundles will usually be numbered at the bottom right corner of the page.
2.3. Other points
Given that your report will need to be photocopied and, usually, scanned as a pdf, it is helpful to produce reports as a single-sided document. Pages can be easily missed when copying a two-sided document. The trial bundle will need to include only single-sided pages in any event.
It is likely to be easier for others to read your report if it is prepared in a font that is not less than size 11.
For ease of reference, if your report cross-refers to any documents, such as a medical record or another report, it is helpful to refer not just to the document, but also to the page number of that document.
It is frequently necessary for experts to quote from medical records or reports. Embedded screen shots of relevant medical entries, images, charts, diagrams or notes (provided they are legible) are acceptable and may assist the Court. If you would like to adopt this approach, we may be able to assist you by providing clinical records or other documents to you in electronic format.
When quoting or reproducing clinical records or other documents within your report it is essential to ensure that there is clear differentiation between what is quoted record, what is mere narrative/summary and what is your expert comment. You may wish to consider the use of brackets or a change of typeface e.g. [Comment: this entry appears to be wrongly dated].
2.4. Summary and conclusion sections
As noted above, your report should contain a brief summary of the claim and your findings near the start of the report. The report will address your opinion in detail; as such, the summary section should rarely need to exceed one or two paragraphs. After your opinion and analysis, a short concluding section is essential and can help clarify your findings, particularly if a number of matters such as a range of expert opinions or alternate diagnoses have been considered in detail within your report.
Sub-headings are particularly useful within your report. These will break up the report into smaller elements and allow you to address discrete issues. Whilst each case is different, a typical liability report may helpfully include headings such as those in the example below:
- Material Instructions;
- Documents available;
- Case summary;
- Medical history;
- Circumstances of injury;
Condition and prognosis reports or care reports will, of course, involve many more elements and it will be appropriate to include many more sub-headings to present what may be a substantial body of information clearly.
3. Content of your report
Whilst no two reports are the same, there are some points of general application when it comes to the content of your report and in providing assistance to Stewarts in preparing the documentation referred to in your report.
3.1. Your Instructions
As noted above, it is a requirement to set out the material nature of your instructions. All reports should contain a list of documents that the expert has had sight of and a summary of the instructions received. It will be important to ensure that these sections are kept up-to-date if your report is revised. A common error is to update the content of your report without reflecting the fact that the witness evidence or other expert reports have also been updated (and, in particular, to change the dates of those documents referred to). Your final report cannot and should not refer to any early draft documents.
3.2. Factual disputes and how to deal with them
Frequently there will be a dispute between the parties as to what actually occurred. This will usually be apparent from conflicting witness statements. It is for the Court, not you as an expert, to determine what occurred (i.e. to make a finding of fact). It may be possible to determine which sequence of events you consider more likely; however, care will need to be taken not to usurp the Court function.
In cases where there are challenging factual disputes it may be necessary to express your opinion with alternative scenarios, leaving the Court to resolve the disputed factual issues.
3.3. Length of reports – your opinion, not a comprehension exercise
It is important to set out a relevant background in your report in order that the Court can then be directed to the opinion section of your report apprised of the relevant issues. Given that it is the opinion section that is likely to be key to the report, there is an art in summarising the background issues or history. You will need to include selectively only the information that you feel relevant.
Whilst it is not a feature of the majority of the reports that I see, undoubtedly it is possible for reports to become too lengthy. If too much information from the clinical records or other expert evidence is reproduced, this is simply duplicative of other documents that the Court will have available to them. In a recent clinical negligence case, Mr Justice Turner cited with approval comments from the President of the Family Division, Sir James Munby:
“…too many expert reports… contain too much history and too much factual narrative… expert reports must be succinct, focused and analytical. But they must also of course be evidence based.”
He then went on to conclude that unnecessary content may be detrimental insofar as there is a risk that “important points are lost in the vastness of the context in which they appear”.
3.4. Helpful literature
It is frequently the case that experts will want to refer to helpful publications in support of their expert view. Within clinical negligence litigation there are additional requirements as set out below, but the points are of more general application to all experts:
“Any unpublished literature upon which any expert witness proposes to rely must be served at the same time as service of his report together with a list of published literature.”
Strictly speaking, there is no need to supply freely available published literature to the Defendant with your reports. Unpublished research will, of course, need to be supplied. However, because the literature will likely need to be included within the trial bundle it is always helpful to have the relevant literature provided to us as an appendix to your report.
Whilst we have excellent library resources, it is likely to be much easier for you as an expert to locate documents, particularly medical literature, than it will be for us as the legal team.
3.5. Your CV
Most expert reports contain, as required, a statement of qualifications and the current post of the expert at the start of the report. In preparing your report, it is helpful for it to be prepared with a CV attached as an appendix. The Court will want to have a full CV available when hearing from the experts at trial and determining what weight to give the expert evidence. It will be important for you to update your CV periodically to ensure that it remains current.
Whilst the content of this article is intended to provide broad-brush guidance, it cannot be comprehensive or address issues specific to all cases or expert disciplines. If you have any queries regarding the preparation of your report, do please feel free to contact your instructing solicitor at Stewarts.
(i) For example, in the last year, the NHS Litigation Authority (NHSLA) increased by 45% the number of cases fought to trial (Annual Report 2015/16, p.16)
(ii) Ministry of Justice: Court Statistics Quarterly January to March 2013, p.10 – it should be noted that this data is limited insofar as the Ministry of Justice does not publish High Court statistics. The types of cases that Stewarts specialise in will all be High Court claims. Nevertheless, the data is illustrative that the number of cases that proceed to trial remains low.
(iii) CPR Part 35 Rules and PD 35 Practice Directions
(iv) CPR Part 35.3(1) It is the duty of experts to help the court on matters within their expertise
(v) Harman v East Kent Hospitals NHS Foundation Trust  EWHC 1662 (QB), para 32i)
(vi) Masters Roberts & Cook, Clinical Negligence Model Directions for the High Court
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