Contrary to conventional thinking, the critical conversation is, often, not the conversation of the client with his/her solicitor, but the conversation of the solicitor with an expert.

This is definitely the case in medical negligence actions.

The issue in a medical negligence action is whether the defendant deviated from approved or appropriate practice. It is an error, usually, to think that the plaintiff will succeed if he/she proves that there would have been no injury had the defendant followed a different course of action. (The exceptional case where it would not be an error would be one where the court was persuaded that the conventional practice carried such obvious defects that it was indefensible and where the court effectively condemns the defendant and the practice.)

Thus, in the conversation with the expert, the solicitor is assessing the likelihood of the success of a defence claiming conventional merit for the defendant’s actions.

Incidentally, the solicitor is also assessing the quality of the expert.

Sometimes the quality of an expert shines out.

Former Supreme Court judge Donal Barrington, for instance, has seriously misled the general public (some) of the quality of our judges following his appearance on Nightly News with Vincent Browne. They have assumed that all our judges are of his high quality.

Would that it were so.

Often, in the conversation between the solicitor and the expert, the expert is not aware of any body of opinion supporting the defendant’s actions. This implies a criticism either of the expert or of the defendant.

It is the solicitor’s job to correctly judge whether the expert or the defendant is wrong.

It was a measure of the complexity of medical negligence litigation that Lord Woolf in his now famous and influential report devoted a special mention to those proceedings.

A plaintiff must prove the liability of the defendant. This is not equivalent to proving causation. Liability may arise where proof of an error in judgment or management is established, but the plaintiff must go in to prove that that error was the cause, or a cause, of the untoward outcome for the patient.

Very often this requires the evidence of two separate experts on behalf of the plaintiff, one on liability and the other on causation.