Experts’ meetings are a crucial and daunting part of any case. When done well, they fulfil their purpose, which is to narrow the issues between the experts. When done badly, they can be catastrophic. Beyond drafting the agendas, lawyers have little input into these meetings.

Partner Amy Heath and associate Amy Goldman of our Clinical Negligence team met Matthias Radatz, a consultant neurosurgeon and seasoned expert, to learn more about his experience of the process.

Before the joint meeting

Do you review agendas and provide input to your instructing solicitors before they are finalised?

It is useful to see the agenda before it is finalised so that I can consider whether the questions are answerable or not. There is little point in including questions that will send experts off on a tangent without gain for the overall case.

I don’t tend to meddle with the questions, but I might add a point I perceive to be an important issue between the experts. Sometimes, the lawyers involved don’t perceive a particular issue to be as important as I do.

I also like to know what’s coming.

How closely do you follow an agenda in your discussions?

I don’t feel completely stuck to an agenda. I see it more as a guide than a script. It is a line in the sand from which you can turn left or right.

What is useful in an agenda, and what should be avoided?

Agendas need to be carefully thought through. I find the most useful agendas are those that nail down the areas of disagreement between the experts. It is for the lawyers to identify these.

What is the longest agenda you have encountered?

I was once given an agenda with 50 questions. An agenda shouldn’t have 50 questions; it is too much. An agenda shouldn’t ask the experts to deal with the case instead of the court. It also shouldn’t repeat questions that have been clearly answered in the expert’s reports. When faced with that type of question, I will just say: “I refer to my expert report where this issue is dealt with on page X.”

How would you recommend preparing for a joint meeting? How much time do you set aside?

Preparation is incredibly important, so I spend a lot of time preparing for joint meetings. You need to be well aware of all the documents you have seen, including the clinical records, imaging, pleadings, witness statements and expert reports. I almost know them by heart. You need to know where you want to take the joint statement and you can prepare for this. You can decide what statements from the documents you want to include in the joint statement and you can anticipate what the other expert is going to say. I spend a lot of time thinking about how I would respond if the court favoured the factual evidence of one party or another. I turn the evidence upside down, forwards and backwards, so that I know what my opinion is in any given scenario. It is a lot of work if you want to do it well.

Is it helpful to be provided with a list of all the documents you have seen?

Yes, it is very helpful because sometimes the joint meeting happens five years after you have prepared your report and a vast amount of paperwork has been created in that period. It is useful to be able to refer to the list and make sure you have everything. It is most useful to know what documents have been served and what has not been served because that is a total minefield. It is very important to know which version of your own report has been served.

Is a document that sets out the key issues in the case useful?

Yes, that is also very helpful because it focuses the minds of the experts. A good expert should know what the key issues are by the time joint meetings are happening, but it still helps to reevaluate whether the key issues in the case are the same for the experts and the lawyers. With medical knowledge, you might see things differently from the lawyers. It is important if the case goes to court that you address the issues in a way that is useful to the court and not just to the medics.

How often do you ask solicitors for more information because there is a gap?

It doesn’t happen very often, but it can happen because of the way a case has developed. I was recently involved in a case where I asked my instructing solicitor to provide me with a witness statement from the claimant about their current condition. The statements from the liability trial were differently focused, and there was no evidence within the records about the claimant’s activities of daily living and what they were capable of doing. I had not examined the claimant and found myself unable to answer the relevant question posed in the agenda, so I asked for more information.

During the meeting

What do you see as the purpose of a joint expert meeting and how are they conducted?

By the time I am on the conference call for a joint meeting, I have already gone through the agenda, thought about my responses to the questions and can anticipate what the other expert is going to say. The meeting itself is simply a verbal discussion of where the experts stand.

How much time do you usually set aside for the meeting?

It depends on the length of the agenda and the level of disagreement between the experts, but I would always set aside two hours minimum for the conference call. Sometimes it takes longer and sometimes it is quicker. By the time I am on the call, I already know what I am going to say. There are experts I face all the time who are well-known for acting on both sides and will have done the same level of preparation as me. Those calls are usually shorter.

Have you ever changed your view from your report? If so, what did you do, or what would you do if you did?

I have but only when there was a very good reason because of new evidence being disclosed at a late stage. If new evidence is disclosed, you have to take it into account; otherwise, you could be criticised for ignoring it. I make the reason for changing my view clear in the joint statement. Experts are there to advise the court and must remain impartial. If that means there is no case due to new evidence, then there is no case. It is better for the lawyers to know that early on rather than when you are in the witness box.

I have also sought to rely on published evidence I have not previously referred to in my report in order to respond to the other expert’s opinion during a joint meeting. Before the exchange of expert reports, you never know what the other expert is going to argue. In my view, there needs to be room to bring in published peer review evidence that supports your view at the joint statement stage if you have not anticipated your opposing expert making a particular argument. I simply make clear the reason why I did not previously refer to it in my report.

Have you ever run into problems during a meeting? What did you do/what would you do?

I have never had to go to the court for guidance because I have encountered a problem, but I know I can if I need to.

Do you think experts are mindful that they could be cross-examined on the joint statement?

Many experts are a bit too relaxed about this for my liking and don’t take the joint statement seriously enough. They go into the joint meeting thinking they are just going to answer the questions without enough preparation. I think some experts rely on the fact that the case will settle before trial because many cases do. I don’t like leaving anything to chance.

Part of the reason I do both claimant and defendant work is to remain balanced. An expert who is entrenched is very difficult to do joint statements with.

The joint statement

Is it important who prepares the statement?

I always volunteer to prepare the first draft. Most experts are happy for me to do that. I find it much easier if I prepare the first draft because when someone else does, I often find they have paraphrased my opinion in a way that doesn’t properly reflect my view. When you produce the first draft, people often don’t meddle with your wording, and you can give it a touch that is difficult for the other expert to undo when they make amendments. Preparing the first draft is a lot of work, but it is worthwhile and rewarding. Sometimes, I have to agree to the opposing expert preparing the first draft, but if that happens, I am ruthless about wiping out large paragraphs and rewriting them.

Sometimes, my opposing expert will repeatedly try to amend what I have just changed in the draft. In that scenario, I draft a paragraph under my name and a paragraph under my opposite number’s name. If you structure the statement in that way, nothing can be taken out of context.

How long do you spend preparing joint statements?

I spend a long time preparing joint statements. They sometimes take longer to prepare than my original report because suddenly you have not only the clinical records and imaging to consider but also the pleadings, witness statements and other expert reports you need to take into account. There is often toing and froing over drafts with the other expert, which can take a long time.

When do you send the statement to your instructing solicitor?

I often find it difficult to complete the joint statement within the seven days you are given to do it. I will ignore that timeframe because it is so important to get it right. I will simply tell my instructing solicitor that there have been a lot of amendments, we are on draft eight now, and they will receive it when it is ready.

Top tips for lawyers and experts

What are your tips for both experts and lawyers for getting the most out of joint statements?

My top tip for experts is not to take joint expert meetings lightly. Be prepared and know your report, what you have said in conference and the pleadings really well. The less experience you have, the more prepared you need to be. Be protective of yourself and don’t expose yourself by being underprepared. When experts roll over in the joint meeting, it is often due to a lack of preparation. You need to have the possibility of being cross-examined on the joint statement in the back of your mind. Read the joint statement carefully a number of times before signing it. You need to be on high alert to make sure that you do not sign up to something that you do not want to sign up to. Don’t feel pressured by anyone to sign the statement quickly.

My top tip for lawyers is to ask the right questions that focus on the areas of disagreement between the experts rather than the areas of agreement. Keep agendas concise and manageable and make sure you prepare your expert so that they know what they are letting themselves in for. I find a pre-joint expert meeting conference very helpful.

Is there anywhere you can go to for advice as a new expert?

It is difficult to go to colleagues for advice because to advise you properly they would need to know the intricacies of the case. I have always found reading the judgments of cases that have gone to trial very helpful because the judge will often say why they preferred one expert’s evidence over another’s. I think reading judgments makes you a better expert. You also need to be up to date with all the published literature.

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