Having run an expert witness service for six years - and having been in the field for a lot longer than that - I have learned over time that not all business is good business.
I’m referring specifically to when a new enquiry lands on your desk and, on the face of it, seems like a straightforward instruction to supply a report in your area of expertise.
Before ‘signing on the dotted line’ however, I have become increasingly aware that it’s really important to pause and invest time in some pre-contract due diligence before accepting the responsibility of preparing an expert witness report.
I’ve seen this process from many different angles and have learned some lessons which I’d like to share.
Assessing the instructing solicitor
To start, I can tell you that far too many law firms sign contracts for expert witness services but shy away from paying. Sometimes it’s because they say that they have not been paid themselves, and other times they’ll say it’s because the expert report isn’t up to standard – unsurprisingly this is often because the report doesn’t support the case they want to put forward.
So how can you guard against this when it is tempting to accept every instruction that comes your way as you are developing or cementing a name for yourself as an expert witness?
Here are my top 10 tips:
1) Look at the solicitor’s website. Make sure they specialise in the type of work on which they are instructing you. Specialist lawyers usually have a far better understanding of the ever changing and more complex rules and requirements.
2) Check them out on Google Maps. Be sure that their office set up is professional and consistent with their online presence.
3) Research public records – it will help you spot warning signs. The best places to look are:
a) The Solicitors Regulation Authority (SRA) Register. This is the register of all solicitors and law firms and non-law firms where solicitors are employed. Under the SRA’s ‘consumer’ section is a list of disciplinary decisions made by the Solicitors Disciplinary Tribunal (SDT), relating both to firms and individuals.
The SRA list details for only a certain time frame online, but you can email them to request the full record for any firm or individual.
b) Companies House, which holds a vast amount of information on law firms that are LLPs or limited companies.
4) Consider the quality of the instruction itself. Have they identified your specialism correctly and been clear on how they think you can help?
5) Study their terms. Have they offered you anything which is inappropriate, such as payment contingent on outcome? Or have they suggested something which would compromise your independence and duty to the court?
Some of those checks may lead to red flags and it is better to decline an instruction at this stage than get drawn into a problematic relationship - which will almost certainly play out negatively for you.
Considerations before accepting an instruction
If you do decide to proceed with the instruction, there are still things you should do first. Once you are instructed, you have responsibilities to the court that may mean that it is not possible to stop working on the case at a later date, even if you have not been paid for the work that you have done so far.
Here is part two of my top 10 tips:
6) Be clear about what sort of report you are being asked to produce. Check if it is a report for the court subject to Part 35 of the Civil Procedure Rules, or a professional advisor instruction only, which will be used by the solicitor to critique another expert’s evidence but not under your name. Your responsibilities and duties are completely different in these two situations. It can be problematic if the latter morphs into the former at a later stage of the case.
7) Insist that the solicitor explains to their client that you are independent of them and your primary duty is to the court, even though they are instructing and paying you. Get them to confirm that their client understands and accepts this from the outset.
8) Be clear about when you will be paid. If you have a well-established relationship with a good firm that has proved reliable in the past, then you may be willing to extend them some credit. But the cost to you of that needs to be built into your pricing and you must have a system to follow that up.
9) If the flags weren’t red but amber, think about insisting that you are paid for your report before you will release it or - at least - for payment on account before you commence work on it. Once you have given them the report, your bargaining position to recover your fees is so much weaker.
10) Finally, it is worth insisting that they instruct you through your regular and trusted medical reporting organisation (MRO), rather than directly. If you want to avoid the hassle and risk that comes with taking instruction directly, then working with a quality MRO will ensure this. Once you have that relationship, you can avoid potential issues and simply provide your report and receive your fee.
I first shared these thoughts when I spoke at the Expert Witness Institute Conference earlier this summer and was heartened to hear a resounding endorsement from HHJ Sir Martin Spencer QC who chaired the event and described my tips on getting it right from the start as 'like the foundation of a house'.
Sir Martin emphasised that by doing this he believes that you will be better experts, if you don’t have to worry about such things as fee recovery or your relationship with those instructing you, stating that 'trust is at the foundation of the relationship between experts and those who instruct them'.
At MAPS Medical Reporting we pride ourselves on building strong and lasting relationships with our panel of expert witnesses; paying our experts when they are due is a key part of that.