Article, New Law Journal – December 2011
Legal / Disputes
James Stanbury, Partner at RGL Forensics and a member of the Academy of Experts, and David Greene, NLJ consultant editor and member and immediate past president of the London Solicitors Litigation Association say that early collaboration between experts and solicitors is welcome news.
The continuing development of the litigation process and costs, particularly with the Jackson changes in prospect, are driving solicitors closer to experts and to collaborating with them at an earlier stage of the litigation process. This is to be welcomed, but certainly is a change in habit for many litigators.
The role of experts in the litigation process has radically changed over the past 10 years. This changing scenario and the place of experts in the dispute resolution process was well recognised by Lord Woolf in his report. The result of his work was to establish professional standards for experts and the modern relationship with the court. Woolf sought to emphasise the independence of experts and made experts directly answerable to the court. He also introduced within this framework the single jointly appointed expert. It was as a result of his work that experts have been required to state specifically that they recognise their role in the litigation process and their duties to the court. The Woolf emphasis on early preparation of cases, "front loading”, brought with it automatically, in concept, at least, the earlier involvement of experts in the process. Pre-act ion protocols hove emphasised this trend, particularly with the early production of expert medical evidence.
The early collaboration between experts and litigators, however, has been slow to progress It remains the case that in many claims the use of experts, particularly on the forensic side, is all too often a consideration only investigated having established liability. To some extent the structure of the litigation process encourages the continuance of this approach. In a split process: liability first, quantum second. Even where there is no split, the standard directions put the expert evidence as a last step before trial. In the earlier stages many may not wish to spend on experts when either the case may settle or the claimant may lose on liability. 'Ibis, however, cannot remain the norm and change is afoot.
Pressures on solicitors
"There are a number of influences that are now placing pressure on solicitors to establish an early relationship with experts. The pre-action protocols and the increasing emphasis on resolving disputes before action or at an early stage applies some pressure on parties to consider what an expert is going to say. In short, they require that the parties examine the issues that will be tried, even before proceedings have commenced. This clearly includes aspects of the claim on which the court may normally require expert evidence. This, however, has its limits. The rationale for the normal directions to trial with expert evidence coming as the last step is because it is at this point that all the evidence is collected and available to the expert. This is evidence that may only be available in the course of proceedings; including, for instance, evidence gleaned through court compulsion.
In addition, however, there are some fresh pressures pushing experts and solicitors closer at an early stage of the process. One may be an unintended consequence of the Jackson reforms. The other is a simple commercial dynamic of modern litigation.
The consequence of Jackson
Jackson seeks to change the way in which the court considers proportionality of cost to the quantification of the claim. The whole concept of proportionality of costs requires that solicitors should have in mind the quantification of the claim before embarking on the claim process; have it in mind that the ultimate costs should bear proportion to the claim and the likely outcome. Indeed, this would be a normal exercise in any risk/cost assessment. Traditionally, however, this assessment has taken place without expert assistance. Solicitors may have taken a stab at the likely damages that may be awarded. When, however, solicitors are pressured to undertake а much more detailed cost/risk analysis, the assessment of the likely value of the claim requires more scientific assessment up front. There's no point incurring huge expense to alight upon the fact the claim has a lower value than the costs just before trial.
Jackson has also sought to place emphasis on Pt 36 offers and it looks likely that the incentives and penalties for making or rejecting an offer will increase. Getting it right already makes significant differences to the outcome of a claim and these will only be enhanced post-Jackson. The requirement for proper assessment of offers is all important in modern litigation and the role of expert advice in that assessment will continue to grow.
The other dynamic is simply commercial. Cash is king in many parts of the civil litigation process and clients want to undertake or be advised on the risk/cost/reward analysts. The outcome-focused Solicitors Code of Conduct requires solicitors to advise clients on this basis. It hardly need be said that a proper examination of both the risk and reward element may well need expert assistance. Solicitors might in the past have used a "finger in the air" or simply relied upon the client but today this is a difficult approach and, while it has up-front cost consequences, bringing an expert in at an early stage is a necessary element of the analysis that should precede litigation.
Even then, solicitors are wary of the expenditure on experts but this is to ignore the wider value experts bring to the table. Experienced experts who are familiar with the court process can bring that experience to assist the claim or defence at an early stage. Very often, experts can advise on the very structure of the claim, how to construct it, how to maximise it and on the defence side to test that construction and to minimise it. The early investment in qualified expert advice can pay huge dividends. Whatever the reasons the early collaboration between lawyers and experts will grow and should be welcomed.
As appeared in New Law Journal, December 2011.