A/Prof Genevieve Grant1, Dr Elizabeth Kilgour2
1Australian Centre for Justice Innovation, Faculty of Law, Monash University, 2School of Public Health and Preventive Medicine, Monash University
A lawyer’s choice of medical expert witness can shape a range of aspects of an injury compensation claim. The plaintiff’s experience of claiming, the amount of evidence generated, the quality of decision-making, legal costs and the ultimate results the claim achieves can all be radically affected by expert witness involvement. Despite this, there has been little empirical research investigating how and why injury lawyers select experts for claims. Discourse around expert witnesses is focused on questions of admissibility, bias and the presence of ‘hired guns’ whose evidence can be bought. Less attention has been paid to the routine choices lawyers make about medical expert witnesses in the bureaucratic processing of claims.
This paper draws on interviews with plaintiff lawyers to construct a nuanced picture of lawyer choice of medical experts in injury claims. It explores the range of factors lawyers consider, and how they make sense of the ethics of this aspect of their work in their community of practice. In doing so, it sheds new light on the impact of lawyers’ expert selection practices on the market for expertise, the quality of medical experts’ work and the way claimants experience the legal process of making a claim. It raises important questions about the effectiveness of court-based approaches for regulating medical expert conduct, the diversity and sustainability of the expert workforce and the quality of decision-making informed by expert opinion.
Biography:
A/Prof Genevieve Grant is Director of the Australian Centre for Justice Innovation at Monash University. She is co-author of Luntz & Hambly’s Torts: Cases, Legislation and Commentary (2021) and Victorian Statutory Compensation Schemes (2021). Genevieve’s research uses empirical methods to investigate the operation of civil justice and injury compensation systems.