Jackson Reforms and Costs: Defining Expert Witness engagement.

By Dr. David Allan Feller, Research Associate – Centre for the History of Science, Technology and Medicine and Wellcome Unit for the History of Medicine, Simon Building, University of Manchester, Manchester, M13 9PL, U.K.

The 2013 ‘Jackson reforms’ to the Civil Procedure Rules governing the conduct of litigation in UK courts sought to increase access to the courts by reducing time and costs of litigation and better allocating court resources. To that end, the court’s new, more robust case management requires parties to determine the need for experts at early dates, define issues requiring expert assistance, produce expert reports at earlier and firmer deadlines, and set limits on the costs incurred in hiring experts. These rules have changed the expert’s role in court. Negotiation of fees has become more critical while failure to meet deadlines and disclosure duties may result in the exclusion of the witness, and even the loss of the case. Experts who fail to produce a report for which they are contracted may even face the threat of suit on their own.

The best way to keep something bad from happening is to see it ahead of time… and you can’t see it if you refuse to face the possibility.”
William S. Burroughs

It is not clear that the Jackson reforms have increased access to the courts (by reducing costs and better managing resources), but they most certainly have changed experts’ access to testimonial work by changing the way they practice their craft. Fortunately, experts have significant influence over their way of working from the outset of their engagement by dictating the terms of their employment in their terms of engagament and a ‘Jackson Letter’. This is an initial engagement letter sent to counsel in which the expert states his estimate of work, time and cost should he be hired. At the very least, such a letter should include:

  1. A clear statement of the work to be performed. A primary goal of the Jackson reforms was to get experts to focus on the specific factual issues in the case and to avoid long, rambling opinions which may have implied legal conclusions. Before agreeing to serve as a witness, an expert’s quick review of the case materials and discussion with counsel of the projected issues should allow you to estimate of how you may best contribute in the case. By defining the issues early on, you can estimate of time and cost of the project. Language estimating that costs of an expert’s work may be comparable to ‘cases of this type in which I have previously been involved’ is a good starting point. If it is not clear what the questions for your comment will be, and you cannot give an estimate with some reasonable accuracy, don’t give a quote! Your estimate will be reviewed by the court in its pre-trial planning, and the court has the power to disallow costs exceeding the approved budget. You may not get paid for work the court was not anticipating. Moreover, opinions you may have on issues not raised with the court earlier may not be allowed. However it may be helpful for you to give a verbal guide or estimate at an early stage so that it does not come as a surprise to your instructing solicitor.

    Any definition of the questions presented for your review should then leave room for some amendment should the issues in the case prove different than first thought. If possible, raise questions with counsel about issues you may project in the case before you accept the assignment and see if that helps narrow things at an earlier stage.

  2. The rate at which work will be billed and total cost estimate. This may seem prosaic, but stating up front the hourly rate for work and the number of hours expected to be spent on the case is necessary but can be problematic under the Jackson reforms. As the reforms were intended to limit court costs, it is possible that expert charges deemed ‘unreasonably high’ by the court will be rejected. It is not a bad idea to observe what others charge for similar work in the area, for example, to keep your fees within ‘market rates’.

    In preparing for battle I have always found that plans are useless, but planning is indispensable.”
    Dwight D. Eisenhower

    In the letter, elements of expected charges cannot be too detailed. An estimate of total costs in a case of moderate complexity might include: your general hourly rate; the rate charged for any assistance you will require, such as non-office staff, etc. (this is a good time to review your staff requirements. Do you have everyone you will need to work on the case?); a detailed time estimate; other inestimable categories of charge, including court time, etc. In each of these categories, no level of detail is too fine; a breakdown of transcript review time may include total pages in the case materials to be reviewed at (typically 2 minutes per page); the cost of creating a preliminary report for counsel (15-20 hours); redrafting to produce a final version of report (5 hours); review and critique of other witness’s testimony (5-6 hours); preparation and agenda for experts meetings (8 hours); attend experts meeting and draft joint statement (10-13 hours); meeting with counsel, may be multiple times (3-5 hours); and finally preparation and court time if required, either testifying or observing other testimony. Make sure to allow for contingencies which invariably occur. What you include in the cost menu may be open to negotiation, but what you don’t include may never be charged.

    The expert walks a fine line in this budgeting process: if his estimated cost for the work is too high, he may not get hired should the solicitor deem the bill too expensive or ‘disproportionate’ to the case. If he is too conservative in his estimate, he may not get paid for work exceeding the original bill of costs. Just try to be as accurate as possible and if your projected contribution is ‘disproportionate’ or otherwise too costly for the litigation, you can decide if it is worth your time and effort.

  3. Deadlines. Because the Jackson reforms stress that each case should receive a ‘proper’ amount of the court’s time and resources, deadlines are being applied much more strictly than they may have in the past. It is critical that your letter describing your potential employment include a schedule of work to which you will have no problem adhering; the court will hold you to it. While extensions may be possible, it is wise not to count on them. If you miss a deadline the consequences to your client may be great: in Paul Chambers v Buckinghamshire Healthcare NHS Trust, for example, the court refused to extend the deadline for a the defendant’s expert report and the expert was not allowed to testify at trial.

    Counsel should inform you of potential deadlines early in the hiring process, so make sure to ask for them. This is equally applicable to any other requirements the case may produce, such as court-requested report content, areas which have been conceded or deemed beyond the scope of the case, and information regarding other witnesses. And if as an expert you require counsel to meet deadlines to facilitate your work, make sure those are included as well; deadlines are a team issue.

  4. Disclaimers. Since their adoption, the Jackson reforms have affected expert witnesses in unanticipated ways. As the court now appears more severe in limiting costs, experts may find themselves being pressured regarding their fees and potential charges. Moreover, as the court scrutinises costs to a greater degree, and disallows costs it finds excessive or disproportionate, counsel will find themselves under stress to bring in cases ‘within budget’. Witnesses may find themselves asked by counsel to ‘share the burden’ in this regard, e.g., cutting billing where the court has refused reimbursement for some portion of the bill. Inclusion of a disclaimer in your engagement letter which states that you are being hired as an objective expert witness and that your fee is not contingent on the outcome of the case, nor the court’s ruling regarding any award of fees and costs at the trial’s end, will simply reduce the likelihood of such conflicts.

A well-drafted engagement letter does not solve all of the pitfalls of the business-end of testifying as an expert. Work requirements may change as discovery in the case proceeds, new information may be emerge, other life events may intrude on the course of work. These events are often unanticipated and are dealt with best by voicing concerns and needs with the hiring counsel as early as possible, preferably with a good paper trail documenting any problems.

The Jackson reforms created a balancing act for experts: while intended to be impartial arbiters of specialised knowledge assisting the court, experts have been made an intimate part of the costing and scheduling process leading to trial. A lack of forethought when considering an engagement may lead to difficulties for the expert both with their employer and the court, but a well-drafted Jackson Letter will help clarify the expert’s role and make the terms of engagement comfortable for them, counsel and the court alike.

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