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.

The Irish Times is not a quality newspaper. It fills its pages with opinion of dubious quality.

I am open to criticism on this issue. What, it might be asked, should replace those opinions?

Truly independent opinion would be a good start.

Magisterial reporting would be better.

The latter is seriously problematic. I have adverted to the difficulty of ascertaining, on any particular occasion, exactly what has happened. However, those difficulties are insuperable if what is admissible as “fact” or “what has happened” is too tightly constrained. There is also the question of talent. Commonly we “know” what we have to find out, before we find it out. Fortune favours the prepared mind.

How, with the newspaper editor, do we identify the people with “prepared minds”, the people to whom we should assign the task of “finding” what happened?

There is no one way. However, we can be sure that anyone appearing on the Government’s “business heavyweights” list will not be a good choice.

The better choice would be a person like Knut Wickell, who spent two months in jail in 1910 for querying the Immaculate Conception. Knut, in the context of controlling a bank, had the added merit of being an economist, one spurned for most of his life because he lacked a legal qualification.

More merit.