GENERAL ADVICE – JANUARY 2020

Talk, Talk, Talk

I understand that there is no property in a witness, that expert witnesses are to be objective and non-partisan and that the cut and thrust of adversarial law should be excluded from medicolegal reports.

Orthopaedic Surgeons however are humans. We do have emotions, we form opinions, we are sometimes biased and are regularly egocentric.

Whilst a report prepared for the Court should exclude all of these unwanted emotions, there can be instances where they can be put to good use.

I recognise some value in a Lawyer seeking strategic advice from an expert. That activity will exclude the expert from subsequently providing a report, but it could be exceedingly useful at a commercial level.

Let’s assume that the Lawyer (you) has a client who is alleging negligence following delayed emergency treatment at a major hospital. You have been able to secure one report from an interstate expert who seems to support your claim. Unfortunately, another expert (not necessarily from interstate) provides a contrary view which definitely does not assist your claim.

As is so often the case, the truth probably lies somewhere in between. Identifying the middle ground and using it to your advantage can be very difficult without intimate knowledge of the clinical issue in question. This is where the strategic advisor could be of considerable advantage. You could ask your strategist to review the case, trawl through both opinions and identify both strengths and weaknesses on either side. You could then draw together a case that, whilst not necessarily compelling enough for a Court, could substantially sway discussions during the course of a mediation. It may not take you from zero to hero, but it could bolster the plaintiff’s claim measurably and provide sufficient satisfaction.

Alternatively, if you are acting for the defendant, a similar strategic ploy could be advantageous.

This is an under-utilised paradigm in the expert arena. If I was a Lawyer, briefed with achieving the best possible outcome for my client, I would use it regularly. Maybe you could consider it more often too.