Question
We send out our report in a PDF format so Solicitors are unable to amend them. However now with the updates to adobe they of course can now convert them to a word document.With this in mind we are seeing more and more amendment requests in the form of track changes on the report, not in a letter of request/instruction.
Obviously this is not best practice and knows what is and isn't acceptable. Thus we go back asking for it in letter request format.
However we are getting a lot of push back from this from Solicitors. I appreciate the track changes are a quicker process for them and the letter format is more laborious.
We of course don't want to fall foul of a judge should it be discovered that this process was accepted by any Expert in the Chambers. But equally we don't want to create animosity with Solicitors at being difficult either.
Are you able to clarify and possibly provide us with something we can provide the solicitors who do undertake this process for us to go back with in support?
Answer
It’s not unusual for Solicitors to attend to typos by way of track changes. Suggesting a form of words might be appropriate but much will depend upon the circumstances and the degree of and nature of the amendment. Drafting large parts of reports would not be appropriate. Whatever the position it would have to be made absolutely clear to the expert that they are free to accept or reject any suggestion.The Board agrees, you should not use the solicitor’s version due to the risk you outline. But perhaps the easier solution, with no need for creating difficulties, is simply to open up the solicitor’s “track change” version alongside your own original report and simply follow the documents through together and make the changes you are happy with in your normal way, but in your own document that you have always controlled rather than the one sent by the solicitor? That way you will not end up inadvertently accepting a change you have not actively made.
What’s important is that the expert must form their own independent view about the content of the report. No amendment suggested should distort their true opinion (see para 65 in the attached CJC Guidance: Guidance for the instruction of experts in civil claims).
It might be worth pointing out that the Bar Standards Board Guidance state that barristers should not seek to draft part of an expert’s report but Counsel’s input might include discussing or annotating on draft reports observations and questions for consideration. The same would logically apply to solicitors.
The Bar Standards Board guidance is here and includes a specific section on considering draft expert reports – copy/pasted below for ease of reference.
In short, counsel may discuss or annotate a draft report with observations and questions for the expert to consider in any revisions to the draft, identify the issues to be addressed in the report; identify any opinions or comments which should not be included as a matter of law (e.g. because they are irrelevant / go beyond the expert’s experience and expertise). This can extend to discussing or annotating a draft report with observations and questions for the expert to consider in any revisions to the draft, but counsel should not seek to draft any part of an expert's report.
There is no provision as to the form in which the above involvement of counsel should take – though we can see that reducing such advice or comments to letter form does make it easier to delineate between what is permissible advice as to the correct scope and form of a report, and what is impermissible “drafting”.
If you should wish to be more accommodating and accept track changes by way of input / feedback, some Board members suggest you insist that any track changes are accompanied by Microsoft Word “comments” explaining the reason for the amendment and including any question or issue which has given rise to the amendment, and that all such documents are accompanied by a covering email which contains a clear statement that any track changes are made in the context of [insert reason here – e.g. seeking clarification; reflecting changes necessary as a matter of law].
However, we do think that the expert would be entitled to say that it is in both the client’s, solicitor’s, counsel’s and their interests that the amendments are made in letter form, being a much clearer way to delineate the different functions, and therefore prove that the expert witness evidence is uncontaminated by improper influence.
Extract from Bar Council guidance:
“Experts
30. It is standard practice in civil cases for barristers to be involved in discussions with experts and to consider drafts of the expert's report prior to service of the report on the other side. In this connection, counsel has a proper and important role in assisting an expert as to:
30.1 The issues which the expert should address in his or her report;
30.2 The form of the report and any matters which are required by the rules of court to be included in it; and
30.3 Any opinions and comments which should not be included as a matter of law (e.g. because they are irrelevant or go beyond the expert's experience and expertise).
31. Beyond this, however, the courts have repeatedly emphasised that expert reports should be, and should be seen to be, the independent product of the expert in question: see, e.g., The Ikarian Reefer [1993] 2 Ll Rep. 68 at 81; Practice Direction - Experts and Assessors, para. 1.2; Queens Bench Guide para. 7.8; Admiralty and Commercial Court Guide, para. H.2; Chancery Court Guide 2016, para. 17.47. Accordingly, one should not seek to draft any part of an expert's report. Counsel’s involvement may, however, include discussing or annotating a draft report with observations and questions for the expert to consider in any revisions to the draft. These comments might include assisting an expert to use plainer language, so that the expert’s views are expressed accurately and clearly. When doing this, however, one must keep in mind one’s obligations under Rules C9.2(d), C9.3 and C9.4”
In brief:
The Board’s view is that tracked changes can blur the line between proper requests for clarification and attempts to edit the expert’s evidence. In our opinion, that line is much easier to maintain when feedback is given in a separate letter or email.
It is entirely reasonable to set clear expectations about how amendment requests should be received. You may decide to send all reports in locked PDF format. If any changes are needed, even typos, you could ask that they be raised in a separate document, clearly referencing the lines in question and the nature of the suggested amendment. This ensures a transparent audit trail and makes it clear that any changes are considered independently by you, not inserted on someone else’s suggestion.
For tracked changes, for example, there should be a covering email explaining the reason for the changes (for example, to correct legal terminology or seek clarification), and all suggestions should be clearly framed as queries, not edits.
That way, the expert protects their independence, maintain best practice, and reduces the risk of a judge questioning the process behind their report.