|Andrew Wakefield - not the expert in this case |
but another very dodgy expert who was out for himself
I have begun a three-part series on my heavily under-used blog The London Drink Driving Solicitor looking at how to find the best solicitor for your case. It was inspired by some work I did recently for a potential client.
This person is represented by another motoring solicitor who has charged her £915 to prepare and conduct a trial – this figure includes an expert report and Counsel’s fees for the first appearance and trial. Most barristers want £150 - £250 + VAT for a first appearance and between £350 - £500 + VAT to conduct a magistrates’ court trial like this one and I’m told that the expert report cost £450. So, I’m not really sure how the firm is making any money from these cases, which is why I wasn’t surprised to see that not very much attention appears to have been paid to the preparation of the case. This is an example of the “pile ‘em high and sell ‘em cheap” approach to law that I thought only existed in less reputable legal aid firms.
It seems to me that this firm have turned a perfectly winnable case into a no-hoper.
The client is accused of failing to provide a specimen ofbreath for analysis. Her defence is that she has a medical excuse for her failure, namely that the prescription medication she is taking causes shortness of breath. This is a common side effect of the drug.
The “solicitor”, and I use quotes because the person conducting the case is not a solicitor although this individual is employed by a solicitor’s firm, has instructed an entirely inappropriate expert to give a report. The expert lacks knowledge of the fields on which he is reporting but has nonetheless given a report that looks at three distinct fields, none of which he appears to possess expertise in.
In my opinion, reports should have been obtained from an expert in the operation of the intoximeter (there are only three experts recognised by the manufacturers although lots of others claim to be experts), a pharmacologist and a respiratory expert. It is entirely possible, even desirable, that one expert who is qualified in the human respiratory system and the interaction of drugs upon that system could be found. The expert chosen discloses no knowledge, training or experience in any of the three fields!
The instructed expert has found that the drugs had no impact upon the defendant’s ability to provide despite shortness of breath being so common that the box has a warning on it! It is entirely possible that this defendant did not experience the side effect; however, since the expert has not taken the time to examine the defendant nor her medical records his conclusion can only be a guess.
|Spirometry Test - sorry for the poor quality|
He concludes that her lung function is sufficient to provide a specimen of breath yet he has not performed a spirometry test upon her and, as I say, has not considered her medical history, which includes pneumonia and other similar conditions that may be relevant.
In the report he states that “it is believed that” the intoximeter behaves in a certain way – with respect a real expert knows how it functions and does not need to guess. He was correct, I know because I checked with one of the approved experts who has received training from the device manufacturers and can pick up the phone to them whenever she has a difficult question. If he is having to guess then he is not qualified to give an expert opinion.
As seems to be common with a number of the firms who operate according to what I call the “minimum work possible principle” nobody from the firm has ever met the client for a face-to-face discussion of her case. I know it is possible to prepare a case adequately without meeting the client (I once met an armed robber client for the first 6-months after his case ended – he was so pleased with my work he literally got on the floor and kissed my shoes!!) but I do think that if you are going to do the job properly you should make the effort to meet them. Most drink driving clients are first-timers before the courts and really appreciate the chance to meet with their solicitor and discuss the case properly, which is why I always try to do that – I even travel to meet them somewhere convenient to them for our meetings as a standard part of the service I offer!
If you are looking for a solicitor then do please read the guide I’ve produced, which is published today, part 2 on Monday the 22nd and the final part on Christmas Eve over on http://drinkdrivingsolicitor.blogspot.co.uk/. Do take the time to ask any potential solicitor a whole lot of questions about their service, their experience and what they will do for you. Don’t ask about success rates – it’s the legal equivalent of going to a used car dealer and kicking car tyres.
Whatever you need a solicitor for – good luck in your case.