Effective Use Of Quantum Experts In Serious Injury Litigation – Part 1

Simultaneous Exchange

With simultaneous exchange it is important to explore whether both experts worked to the same, or to sufficiently similar instructions, and that the experts have considered the same evidence.

This will give rise to the need to consider whether supplemental expert reports (or letters) AND for there to be careful consideration of the agenda points for the experts’ meeting.

Sequential Exchange

With sequential exchange of the quantum experts reports, there is some order to what could have been a ‘free for all’. There two influences at play: the recoverable costs regime, and the Civil Justice Council guidance for the instruction of experts in civil claims – (‘CJC Guidance’)

The prospect of good cost recovery ought to focus the minds of all experts and those that instruct them. However, I have seen situations where the influence of recoverable costs can play a heavier part on one side to a litigation than on the other.

Where there is sequential exchange of expert evidence, helpful assistance can be found in CCJ Guidance paragraphs 63 and 73.

Focussed Responding Report

Paragraph 63 CJC Guidance says: 

Where there is to be sequential exchange of reports then the defendant’s expert’s report usually will be produced in response to the claimants.

Paragraph 63 goes on to say that the defendant’s expert’s report:

Need not repeat information that is adequately dealt with by the claimant’s expert’s report, should focus only on material areas of difference, should contain a reconciliation between the loss assessments of the two experts and identify any different conclusion drawn by the defendant’s expert for each assumption.

That should mean that defendant’s experts ought not be producing ‘bulky’ reports, repeating background facts and financial analysis, but should comprise of confirmed areas of agreement/disagreement and focussed reasoned argument on key areas.

Sadly, I still encounter quantum experts instructed by defendants, that I can only assume are insecure about their role and influence, who simply disregard paragraph 63 of CCJ guidance. See my recent blog about this very topic in which I give the example of a 200 page defendant expert’s report responding to my 25 page report – way OTT. Whilst they should be making their expert topic points and leaving the advocacy to others, for some experts there is a tendency to hide behind an array of tables and repetitive, sometimes unsubstantiated, assertions.

Right of Reply – Para 73 CJC Guidance

Now paragraph 73 of CJC guidance says:

Where there is sequential exchange of expert reports, with the defendant’s expert’s report prepared in accordance with the guidance at paragraph 63 above, the joint statement should focus upon the areas of disagreement, save for the need for the claimant’s expert to consider and respond to material, information and commentary included within the defendant’s expert’s report.

This guidance provides clear recognition that in the joint statement the claimant’s expert may need to consider and respond to material matters raised by the defendant’s expert’s report.

I regularly deal with high value complex claims involving lost business profits and have found this guidance very helpful as, irrespective of a pre-set experts’ meeting agenda, it gives the claimant’s expert a hugely important ‘right of reply’.

Don’t Get Distracted – Keep Your Eye On The Ball

I do feel that CJC Guidance paragraphs 63 and 73 serve as reminders to experts, and those that instruct them, to keep focused on material issues and differences. This is important from both a recoverable costs perspective but also achieving good outcomes.

Fundamentally Different Cases

A hugely important topic for all experts to consider is how to address fundamentally different ‘cases’ advanced by the respective parties. If this is done well, then ultimately you will get the best outcome for your client; and for an expert to do this well, takes skill, confidence and experience on the part of the expert.

Yet again the CJC guidance ‘comes to the rescue’ of those experts that pay attention to what the court wants from them.

CJC Guidance paragraph 58 says: 

Where there are material facts in dispute experts should express separate opinions on each hypothesis put forward. They should not express a view in favour of one or other disputed version of the facts unless, they consider one set of facts as being improbable or less probable, in which case they may express that view and should give reasons for holding it.

In other words, your expert can, and must, address their opinion on the respective cases.

Also, make sure the opposing expert does likewise.

Further Evidence / Make or Break

And finally, this stage in the process will be the time to identify areas in your client’s case that require support by way of further evidence. But remember the difficulties you may face in obtaining permission to serve further evidence. This can have a ‘make or break’ influence on the outcome of a claim.

If possible, do get that further evidence in place ahead of the experts’ meeting – so your expert has “evidence” rather than “assertion” to refer to.

And Finally …….

If there is one takeaway from this article, please let it be that:

good communication with your quantum expert has to be a ‘guiding star’ for successful outcomes.