Estimated reading time at 200 wpm: 7 minutes

This article follows from and should be read in conjunction with The Privileges, Roles, and Duties of an Expert Witness for UK Psychiatrists – Investigative Psychiatry

The process of instructing an expert witness in a legal matter can be divided into two key stages: the initial approach and the formal instruction. Understanding the purpose and content of each stage is crucial for both the instructing party and the expert, ensuring clarity, legal compliance, and a smooth working relationship.

Instructions are not like in ordinary life, a list of ‘to do’ items. This is legal business. Instruction is analogous to prescription in medical practice, in one important respect; it is the end point of numerous considerations in a process. [Hence the GMC has used the word ‘prescribing‘ more that prescription.] The author has seen and heard of several seasoned lawyers misunderstanding what ‘instruction‘ means. Here are some sample letters of instruction from the Expert Witness Institute.

A now familiar trap is for any candidate expert witness to assume that a letter of advice to solicitors from a barrister is ‘instruction’. It is quite simply, not.

This publication is constructed based on training materials form several sources over the years and some from Bond Solon. It is important to study: What to expect from solicitors’ letters of instruction (Bond Solon, Nov 2024)

Part 1: The Letter of Approach (Proposed Instructions)

This initial letter serves as a proposal to the expert, allowing them to assess their suitability for the case and to provide a fee quotation. It establishes the groundwork for a potential formal instruction. Key elements of this letter include:

1. Case and Legal Context:
   1. Case Title and Court: The full name of the case (e.g., R v. Smith) and the case number, as well as the specific court where the proceedings are taking place (e.g., Crown Court at Old Bailey).
   2. Instructing Party: The full name and contact details of the party approaching the expert (e.g., The Crown Prosecution Service, Defence Solicitors from Firm Name, or in some cases, the court itself). The status of the instructing party, such as whether they represent the prosecution or the defence, should be clearly stated.
   3. Single Joint Expert: Where the instruction is to a single joint expert, this must be explicitly disclosed.
2. Preliminary Information:
   1. Parties and Key Personnel: The names of the parties and any other key personnel involved in the case to check for any potential conflicts of interest.
   2. Case Summary: A brief overview of the case and the issues to be addressed, to ensure the expert is qualified to provide an opinion.
   3. Expert’s Role: An indication of the anticipated nature of the expert’s instruction (e.g., condition and prognosis, causation).
3. Fee Agreement and Quotation:
   1. Proposed instructions will typically seek a quotation for the estimated cost of the report. The quotation is often based on the volume of materials to be studied, which should be specified by a page count for documents or a duration for audio/video files. The expert may provide this quotation after reviewing the provided materials.

Part 2: The Letter of Instruction

This formal letter constitutes the final agreement and provides the detailed brief for the expert’s work including the issue of fees. It is usually issued after the expert has confirmed their ability to take on the case and a fee has been agreed. Many letters of instruction fail simply because they do not detail the fees. The Letter of Instruction must contain:

4. The Legal Question(s):
   1. The core of the instructions is the specific legal question or questions to be answered. This must be precise, as it dictates the focus and purpose of the entire report. Examples of specific questions include:
      1. “Is the defendant, P, fit to plead and stand trial?”
      2. “Does the defendant, P, meet the criteria for a defence of insanity under the M’Naghten Rules?”
      3. “Does the defendant, P, suffer from a mental disorder that is likely to have been a causal factor in the alleged offence, and if so, what is the nature and degree of that causation?”
      4. “Does the defendant, P, meet the criteria for a hospital order under s.37/41 of the Mental Health Act 1983?”
5. Review of Materials:
   1. A detailed list of all documents provided for review. This is essential for transparency and for defining the scope of the expert’s review. The list should be clear and itemised, containing:
      1. Police Documents: This can include MG forms (e.g., MG1, MG3, MG5), custody records, transcripts of police interviews, and witness statements.
      2. Medical Records: A full list of all relevant records from the person’s GP, any psychiatric inpatient or outpatient notes, and records from other health providers.
      3. Social and Educational Records: Any records from social services, school reports, or probation records that are relevant to the case.
      4. CCTV and Other Evidence: Any video or audio evidence that the expert is expected to consider.
      5. Chronology and Discrepancies: The instructions should provide a detailed history and chronology of events, and draw attention to any pertinent discrepancies in the evidence or factual disputes for the expert to opine on.
6. Overriding Duty to the Court:
   1. The instructions should explicitly state the expert’s overriding duty to the court. This is a crucial professional and ethical obligation. The instructions must confirm that the expert is expected to be:
      1. Independent: The primary duty is to the court, not to the instructing party.
      2. Impartial: The opinion must be objective and unbiased, regardless of who is paying for the report.
      3. Honest and Transparent: All material facts and assumptions on which the opinion is based must be clearly stated.
      4. Qualified: The expert must confirm that they are suitably qualified and have the necessary expertise to provide the requested opinion.
7. Practical and Administrative Details:
   1. The instructions should cover the logistical aspects of the work. This helps to prevent delays and misunderstandings. Key details include:
      1. Reporting Timetable: A clear and firm deadline for the completion and submission of the report, including any urgency for a court timetable.
      2. Interview: This section may also indicate any preferences for form or means of interview (e.g., whether in-person, video, or telephone interviews are permitted or excluded).
      3. Transmission of Report: Details on how the report is to be transmitted, for example, whether it should be in paper or electronic format, and if electronic, the agreement regarding encrypted files.
      4. Reporting Format: Clarification on the required format, such as the need for a specific report template, if any specific headings are required.
      5. Confidentiality: A reminder that all related information is confidential as well as the report.
8. Legal Aid/Funding: Confirmation of the financial arrangements, including whether the work is being undertaken under a Legal Aid certificate or if the report is to be court funded.
9. Date of Instructions: The date on which the instructions were provided.

Conclusion

Ultimately, well-defined instructions are the foundation for a high-quality expert opinion that serves the court by clarifying complex issues, withstanding legal scrutiny, and being robustly defended under cross-examination.

The distinction between a letter of approach and a formal letter of instruction is vital for a streamlined and professional expert witness process. The initial approach allows for an assessment of suitability and the negotiation of fees, while the subsequent formal instruction provides the definitive and detailed brief for the expert’s work.

By following this two-part structure, instructing parties can ensure they provide the expert with all the necessary information to produce a report that is legally sound and transparent.