The mandatory duty on range of opinion

 

Summary

The Claimant was suing in relation to profound disabilities he suffered due to the Defendant’s admitted clinical negligence. While some of the experts were praised, some were severally criticised by the judge, particularly for failing to consider the range of opinion. Two of the experts were also significantly hampered by their nervousness in cross-examination. 

Learning points

Learning points for instructing parties

• Before trial, you should ascertain how confident your experts are at providing oral evidence and, if required, provide them with suitable training such as EWI’s Confidence in the Courtroom course.

Learning points for experts

• You should approach your evidence conscientiously with the sole purpose of assisting the court, giving careful and considered evidence without straying beyond the limits of your experience and expertise.

• Make sure you understand and comply with CPR Part 35.3 2(6) which states that an expert's report must, where there is a range of opinion on the matters dealt with in the report –

  • (a) summarise the range of opinions; and

  • (b) give reasons for the expert’s own opinion

• You should consider the advantages and disadvantages of all of the options under consideration. Be careful to avoid focussing overly on the advantages, and ignoring the disadvantages, of the option that you prefer.

• Avoid providing evidence on matters outside of your expertise. If an expert in that field has been instructed in the case, you should defer to their opinion.

• While avoiding advising on matters outside your expertise, do not be deterred by unwarranted criticism from the opposing counsel from fully addressing matters within your expertise.

• While it is normal to be nervous about giving oral evidence, especially for the first time, there are ways to build up your confidence and control your nerves. As a first step, we recommend taking our Confidence in the Courtroom course.

• You can also check out the episode of our Expert Matters Podcast on range of opinion. 

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