48 LAWYER MONTHLY JUNE 2024 Judge once told me that the level at which a report should be pitched is that of an intelligent 14-year-old. Judges will not be familiar with the technical jargon and it is important that technical terms are explained within the text and/or with the use of a glossary. Cross-examination Cross-examination is a stressful experience. Experts will be crossexamined on the science, but commonly, there is an ad hominem attack upon the expert. The cross-examining Counsel has the road map. The expert cannot write down the questions and responses, they have to remember the response previously given. Counsel can ask you the same or a very similar question at different points in time to see if you give a different response. In cross-examination closed questions, to be answered yes or no, are typical. If you feel a yes or no answer does not adequately deal with the issue say so. If Counsel does not ask you to elaborate the Judge might and if not your Counsel certainly will in re-examination. So, raise the point and leave the Court to pick it up as and when it wishes. Unless it is absolutely fundamental to the case avoid have a “bright idea” in the middle of cross-examination. Judges wish experts to offer and explain their opinions in writing as part of a primary or subsequent report and/or in a joint expert report. Introducing a new concept in the middle of cross-examination will rarely be welcome. The key to all of this is preparation. You must read and re-read everything that has been disclosed to the Court on your behalf and, hopefully, all of the reports and joint reports of the other experts. You should respond to questions in a careful and thorough way looking in the general direction of the Judge but not staring at the Judge which many Judges find distracting. Special interests I have a particular interest in the cauda equina syndrome. I have more scientific publications on the subject of CES than any other author in the world and I am recognised as an international authority on this subject. I have published on the standard of care, clinical assessment, imaging, and so many investigations, management and outcome in CES and I have audited medicolegal CES cases. I also have a particular interest in spinal injury. I was the lead neurosurgeon to NICE trauma guidelines, including guidelines for the management of acute spinal injury, which was published in 2016. I have several academic publications in respect of spinal injury, including a review of secondary neurological deterioration in medicolegal spinal injury cases (the commonest cause is failure to immobilise the spine). I have a specialist interest in spinal infection and spinal epidural abscess and again I have a number of publications in that area. Interesting cases Many of my cases have been memorable. What interests me most are areas of medicolegal practice that are evolving. In the cauda equina syndrome current controversies include failure of widely used subclassifications of CES to determine management and outcome. They include the diagnosis of severe CES at a time when patients have bladder ultrasound and catheterisation prior to urinary incontinence (a marker of severe CES) and whether CES causes a greater severity and frequency of back pain (in my opinion it does); I have the original research to support that but this is highly controversial. In spinal injury the key questions are the cause of secondary neurological deterioration after the primary injury and whether any secondary injury is reversible (due to the matter of fact). The key issue in the case of spinal infection is making an early diagnosis where outcomes are typically good if not excellent; A delayed diagnosis is often associated with severe neurological impairment up to paraplegia. The essential elements of a good report At an early stage set out why you are an appropriate expert for this case, in a mini-CV. A Judge has neither the time nor the interest to trawl through a full CV to try to pull out your expertise. The facts of the case should be set out in detail, emphasising any conflicts in the evidence (which are common). Start with a summary so that the Judge can see what the issues in the case are. You will have to assume some facts as correct but state that you recognise that evidence is a matter for the Court, to whom you defer. The Court may have no knowledge of specialist terms, either use footnotes to explain them or provide a chronology, or both; make life easy for the Judge. Set out the tests you apply; “the reasonable and responsible neurosurgeon will…” or “on balance the outcome with surgery would…”. CPR insists that if there is a range of opinion it must be stated, say where your opinion lies within the range and why. Above all demonstrate impartiality, be measured and explain your reasoning with reference to the medical literature. Other interests I was previously an offshore yachtsman and a pilot (power). I am currently training as a glider pilot. Professor Nicholas Vyner Todd Consultant Neurosurgeon & Spinal Surgeon PO Box 682, Newcastle upon Tyne, NE5 9ED Email: mrnvtodd@nicktoddoffice.co.uk Tel: 0191 230 5927
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