Date: 24 July 2019
Something a lot of potential or new clients
worry about is the prospect of their case going to
court. This article will explain that going to trial is
very unlikely, as well as outlining the process should
it happen.
At the start it is important to note that less than one percent of our cases go to trial. It is very rare for medical negligence cases to go to court in general, with settlements usually being reached at roundtable meetings (which are explained here). The cases that do reach that stage do so because they are about a new or radical treatment, deal with new law or are particularly high value.
If it should go to trial it is important to note that claimants do not need to be present for the whole trial. The only time they have be there is when giving their witness statement, after that it is up to the individual. It can be useful for them to attend, as it gives the opportunity to ask questions and keep up to date with developments but it is not absolutely necessary. We understand that some clients will find the process upsetting and daunting.
The first step of the actual process is a pre-trial conference with the barrister, the legal team and the medical experts. This is essentially a chance to layout the plans so everyone knows what to expect.
The actual trial begins with opening statements from both sides to the judge.
Witness evidence is heard next, with the claimant’s side going first. As mentioned earlier this is the only stage the claimant has to attend in order to give their evidence. A witness statement will have already been prepared and served earlier in the case. The claimant’s barrister will take the claimant through the statement (the claimant will have a copy in front of them to refer to). The claimant is then cross examined by the other side’s barrister. The judge has control over the process so the questioning must be reasonable. Once the claimant’s evidence has been given other witnesses can be called such as a partner or other family members, if witness statements have been served from them earlier in the case.
It is then the turn of the defendant’s witnesses, who
are the doctors, nurses or whichever medical
professionals provided care. The process is the same.
The next stage is medical expert evidence. This is the longest part of the trial. Once again the claimant’s experts will go first. As with before, the expert will give their evidence and then be cross examined by the barrister from the other side.
When all the evidence has been given both sides’ barristers give closing statements and there is a summing up of the proceedings. The judge then usually reserves judgement to go over everything before making a decision. This can take anything from a few days to several months. The judgement is usually read out by the judge in court at a later date with the legal teams present. The claimant does not need to be present at the judgement.
Trials can take anything between several days to a couple of weeks. The longest trial Sarah has been involved in lasted for fifteen days.
We hope this article has answered any queries you have about the trial process, if you still have questions please get in touch on 01253 356051.
