Better than waving a finger ….

Sometimes it is necessary to state what should be the obvious.  So it is that Jackson LJ (of the eponymous reforms) found it necessary in the course of giving  judgment in the recent case of O’Connor v Pennine Acute Hospitals HS Trust [2015] EWCA Civ 1244 (3rd December 2015) to remind court users that a drawing or diagram is likely to be better than a thousand words or gesticulations.

In this appeal relating to surgery for a vesicovaginal fistula during which injury was caused to the left femoral nerve, the court was concerned to note that no photographs, diagrams of plans were available to show the judges “the location of the various abdominal organs and nerves and how they fitted together”. Counsel had sought to overcome this – “Mr Feeny [counsel for the appellant] valiantly did his best, by waving a finger around in the air to show us what was what.  That was hardly ideal.”  It surely must have been an interesting display of finger wagging to witness given the issues in the case.  The case was adjourned for the preparation of a proper sketch plan.

And so the court came to offer guidance for future cases, guidance which is equally applicable to an expert providing a written report in the course of, or in expectation of, proceedings:

In any case involving medical, engineering or other scientific issues the bundle should include any necessary drawings or photographs, so that the court can readily understand the technical background and context.”

That guidance should be extended to all experts at all stages of legal proceedings, that they should provide all necessary drawings or photographs so that any user of the expert evidence and reader of the expert’s report who does not have the expert’s expertise is readily able to understand the background and context of the expert evidence, and the reasoning process from which the expert opinions come.  A photograph, drawing or plan is often worth a thousand words when it comes to trying to communicate with a lawyer or judge.  Waving a finger in the air instead is unlikely to be a satisfactory teaching method.

[Who or what is medico-legal minder?  Terms and conditions apply]

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