Writing legal reportsGiving evidenceBMJ 1998; 316 doi: https://doi.org/10.1136/bmj.316.7147.2 (Published 13 June 1998) Cite this as: BMJ 1998;316:S2-7147
Writing legal reports
- James Barrett, Locum consultant psychiatrist
Medicolegal work can be a valuable addition to a career portfolio. Psychiatrist James Barrett advises on preparing reports for the legal profession
Most doctors' first opportunities in medicolegal work will arise from their routine practice. Solicitors often seek reports from doctors who happen to be treating their clients. If you write an acceptable report, and offer to write others, then solicitors may put you in a pool of doctors from which they draw when they think that it might benefit their clients' case to seek a medical opinion. If you seek this work, hawking your skills around will not alarm solicitors. Send suitably anonymised samples of reports you have already written, together with an offer to provide more of a similar quality, and details of your rates.
How does it pay?
Legal work falls outwith the NHS, and is paid for entirely separately. Patients funded by legal aid will be able to afford about £80 an hour. Refugees - whose cases are funded by the green form scheme - can afford rather less. There is usually a ceiling on how much can be afforded in any one case funded by legal aid or green form - typically set at £400 or so. Some patients will be funding their own cases, and under such circumstances fees are negotiable. Solicitors will usually pay for cases only when they themselves have been paid by the legal aid board, which can mean a delay of many months. While it seems surprising that law firms are not able to make interim payments out of their own reserves, this seems never to be the case.
Before commencing an examination, explain to the patient what the role of any translator is and the purpose of the examination as a whole. Make it clear that the usual rules of medical confidentiality will not be followed in that a report will be made that will be passed on to the solicitor but to no one else. Explain that the report will not be used in a more public forum unless the patient allows the solicitor to do this. An ethical dilemma may arise when a patient reveals matters in the course of a criminal medicolegal interview that may lead to their conviction. If this is thought likely to occur it may be wise for the patient's solicitor to be present and for the solicitor to advise the patient not to answer questions when an answer might be prejudicial. This will clearly diminish the quality of the report but might preserve the patient's chance of retaining his or her liberty.
Cases that require medicolegal opinions can be of any sort: civil, criminal, or claims of negligence against other doctors or an NHS trust. In all cases it is essential to ask precisely what question the solicitor wants addressed. Vague requests for “a look at…” simply will not do. The more exactly the question can be formulated, the more easily it can be answered. Before the patient is seen every scrap of documentation pertaining to their case should be scrutinised. The medical notes, the nursing notes, the letter she wrote her mother soon before the unfortunate event … everything. Often a medically rather than legally trained eye will have spotted the probable answer even before the patient is actually seen, and the examination serves only to confirm what has been gleaned by documentary study.
The location for examination varies with the nature of the case. Psychiatric examination may best be conducted in the patient's home environment, while other forms of examination requiring special equipment need to be performed in medical premises of some sort. Sometimes examinations have to be performed in a prison. Make no assumption about the presence of medical equipment, and if anything more sophisticated than a nurse's stethoscope and a sphygmomanometer is required it would be as well to bring your own. Any special investigations or tests that are required need to be ordered from the private sector, or on a private basis from the NHS with the solicitor being informed of the expense in order that funding can be sought before the examination is conducted. This can be tricky if the patient is in a prison or detention centre.
Legal work is fee for service medical work conducted outside the NHS. Thus, like private work, it brings the potential ethical problems associated with blurring of boundaries between the private sector and the NHS, particularly if the examination is conducted on NHS premises, consumes NHS resources such as special tests, and deprives the NHS of your time. It is for each individual to decide what stance to take on these issues, but problems are more likely to arise in specialties in which many expensive tests are required or much time is involved.
Writing the report
Writing legal reports is an art that is best learned by reading good reports written by others and then seeking to emulate them. It is essential to bear in mind that, while you might write many pages about what you found and how you elicited it, the solicitor is interested mainly in your opinion of what this evidence amounts to and the implications that flow from it. Some very bright and well educated non-medical people (lawyers) will scrutinise it minutely, and so it is best to avoid the use of technical terminology as far as possible and instead to use ordinary language. It is essential that your conclusions avoid all use of jargon and be couched in as unambiguous a manner as you think possible. The history given by the patient should be given in the past historic tense and not as a statement of current fact (“I gathered Miss Jones had been born in Cardiff” rather than “Miss Jones was born in Cardiff”), which can take a bit of getting used to. Similarly record things presented to you by the patient as facts as just that - statements said to be true by the patient (“Miss Jones said that her father had been a millionaire” rather than “Miss Jones's father was a millionaire”). When describing your own examination findings, the past tense can be fairly used: you were there and can vouch for their truth.
Finally, your conclusions reached after subsequent consideration can be written in the present tense, since they were true as you wrote them and were not thoughts that you had when examining the patient.
Know your limits
Avoid expressing opinions in an area in which you have no recognised expertise. Even if the patient has ankles the texture of porridge and the size of melons and lungs crackling like wrapping paper, it's not heart failure until a physician says it is. As a psychiatrist, I would just strongly suspect heart failure and recommend a cardiac opinion be obtained. Caution during the preparation of reports will avoid much potential embarrassment later.
- Sandra Goldbeck-Wood, Assistant Papers editor
Sandra Goldbeck-Wood returns from a course that coaches doctors before their court room appearances
Counsel for the prosecution rose to her feet and leaned forward across the table: “How many babies have you delivered, exactly, Dr Goldbeck-Wood?”
Wrongfooted, I plucked a vague figure out of the air; “I should say between x and y.”
“Well, there's rather a difference between x and y isn't there, Dr Goldbeck-Wood? How many is it, x or y?”
“I'm not sure exactly. I don't keep a personal record of each delivery,” I protested.
“Oh I see!” crowed counsel, “Are you saying that you don't feel it's important to keep records?”
Unsettled, I battled on. “No, that's not what I'm saying…”
She tapped impatiently with a pencil on the table as I spoke and sighed like a teacher waiting for silence from a tiresome child. All the while I struggled to see the end of the garden path down which she was leading me, and what bearing if any her questions had on my evidence about the delivery in question.
The scene was not a courtroom but the afternoon session of a one day course run by Bond Solon and intended to prepare expert witnesses for cross examination. It was strangely difficult to hold onto this reality, faced with the transformation of our courteous and formal tutor into a sort of legal mistress whiplash. The contrast was impressive. It was also educational: one salutary experience in the hand is worth many wise cognitions in the bush.
I knew in theory that our teacher's apparently hostile and irrelevant preoccupation with nitpicking biographical details was just a technique designed to undermine my composure, because she had told me so that morning.
Still, it was harder than I had thought to remember to turn and face the person playing the role of judge (whose opinion alone counts), to pause before answering, to recall the evidence I wanted to present, and above all to remember that this was not a personal attack but a cheap trick to weaken my presentation of the evidence. The countermeasure I was supposed to be learning to use was a combination of managing my own reactions and soundbite politics.
My fellow course members - architects, engineers, pharmacists, and other doctors at the top of their professional hierarchies - apparently found the experience no less daunting. These men (unlike me) were real experts, no doubt accustomed to deference at work, and the studied insolence seemed to go even harder with them.
The course also offered a mixture of background information about the legal system, courtroom procedures, and the role of the expert witness, much of which could presumably be read in books. The role play, however, could not, and its most appealing aspect was perhaps the voyeuristic pleasure of a peeping into another profession's armamentarium of secret weapons. Sophistry, distraction, sudden switches from courtesy to aggression, sarcasm, and impatient gestures are just a few of the tools I'm told you won't find in any book but which are handed down in oral tradition from generation to generation of barristers, much as surgeons hand down favourite techniques for the tying of surgical knots. The trick is to remember it's nothing personal - it's a game, and you can win if you know how to play.
Points to remember when giving evidence in court
Familiarise yourself with courtroom procedures
Know your evidence thoroughly
Seek every opportunity to get your message across
Turn to face the judge, not the cross examining counsel
Stay calm and take nothing personally
Speak slowly and clearly
You are in control of your evidence, not the lawyers
Bond Solon Training can be contacted on 0171 925 0330