Incompetent Information Management

26 4 minutes read

Listen to this article

Once upon a time, when I was working on an expert witness job, I received an email from my instructing solicitors (a massive multinational corporate law firm). The sender had accidentally cc’d me on a discussion with her client in which she recommended withholding certain information from me – information which the client had, and which I needed to form an opinion. It was foreseeable to the client that my opinion would not favour their position:

“I had another very helpful call with <X> and <Y> this afternoon on <Site Name>. Following the call I have sent the email below to the expert. Again apologies for not seeking your approval first, however, I know the expert is drafting his report now and I wanted to make sure he had this information to hand.

On consideration I have not as yet shared the Guidance Note and the analysis around sample sets we reviewed on Monday. As discussed this is a bit of a double edged sword as i) it states <Water plc> should have used the look-up table, which <Water plc> did not do and ii) we don’t know if it was issued to <The Contractor>. I also think the further analysis <X> has carried out provides stronger arguments. If you, or <X/Y> disagree and would like the Guidance note and sample points to be put in front of the expert please do let me know.”

The author of this email did not realise that they had copied me in. They attempted to substitute, for the requested documents in their client’s possession, a sworn statement from a Water plc employee which claimed as fact things which I already knew were at best questionable.

I did not immediately point out that I knew I was being “information managed”. I merely reflected in my report the fact that I had not been presented with evidence to support the claims made in the witness statement.

The instructing solicitor then attempted to twist my arm, clearly unaware that I had evidence that she and her client were acting improperly:

“As set out in <Instructing solicitor>’s email below, now that you have <X>’s witness statement (which will be signed and sent to you shortly), you can ‘rely’ on the facts stated therein to plug the holes in the factual timeline. This is done often by experts where they set out their conclusions based on an assumption that the ‘facts stated in the witness statement are true’.

If we served your statement as currently drafted, it would be clear to both parties and the adjudicator that you hadn’t been given the full factual background and this would call into question all of your conclusions. As such, <The Contractor> would have a good chance of getting your expert report discounted entirely. Clearly, this is not in the best interests of the client, or you for that matter.”

That last part sounded like a bit of threat to me. The interests of the client and my interests are often quite different things, because the duty of expert witnesses is to the court, not the person paying you.

I was also unconvinced that not being given the full factual background would actually reflect poorly on me, especially in circumstances like these. I find myself having to ask for additional information on pretty much every job I do, and it is commonly the case that for one reason or another, I never get everything I ask for. I do always get enough, though, to judge whether or not I think the evidence provided puts me in a position to form an opinion on the question asked to the relevant standard of proof.

So, I pushed back against the instructing solicitor’s veiled threat, still without disclosing that I knew that they had deliberately withheld information from me, with the intention of influencing my report in their favour. I then received a call from a partner at the law firm. She tried to turn the screw a bit harder, until I sent her a copy of her underling’s accidental email. That got her off her high horse. Needless to say, we parted ways.

Now, every time I get a call from this law firm with a potential instruction, I remember this incident. Every time I am involved in a case where this firm acts for the opposing party, I remember this incident. I think a little less of anyone who works for this firm, having seen how they operate.

Withholding information is a risky strategy for lawyers. If the court discovered that a lawyer had knowingly withheld information to unduly influence an expert, then the penalties would be severe. At a minimum, the court would disregard the expert’s report and testimony, and the offending party might be ordered to pay heavy financial penalties for failing to comply with court rules and disclosure obligations. The claim could even be struck out entirely.

This was the only occasion in my experience in which the instructing solicitor was as incompetent as they were unethical, but it is far from the only time when I suspected I was not being told the full story by my client. I see many “expert reports” clearly based on a curated set of evidence. There are probably a lot of “experts” who are happy to work this way, as long as they get to include a caveat that the report is based on the information they were given, and they reserve the right to change their opinion in the face of new evidence.

I personally do not think this goes far enough. It does not serve the court to be presented with two expert reports based on completely different slanted sets of evidence. If you have the expertise to write an expert report, then you should know the kind of records and information which companies like your instructing solicitor’s clients hold. If they are absent from your bundle, you should ask be asking for them. Playing dumb will not do, in my opinion.