Touching on the challenges involved in advising SMBs and other parties on complex IP matters, with a particular focus on trademark law, here Lawyer Monthly hears form Steven Wake, Partner at Forresters, a UK and European intellectual property attorney firm with offices in Munich, Birmingham, Liverpool and London.

Steven started his working life as a patent attorney, became enamoured with trademarks, decided to devote his time to that area of the business, and hasn’t looked back since.

How does your firm’s expertise overcome recent challenges in UK trademark law and practice?

The main challenges faced by UK trademark attorneys on a day-to-day basis are changes in law and practice. I believe that the changes implemented over the past 10 to15 years have, in the main, benefitted trademark owners and encouraged them to make greater use of the trademark system. This in turn has benefitted our business.

The pace of change in the trademark environment seems ever increasing. Being able to adapt to change is vital. When recruiting we look for well-rounded individuals who happily adapt to change. This strategy has worked well. At Forresters we invest significantly in the education of trainees, and the continued professional development of qualified attorneys and administrators alike. This helps to ensure that our knowledge base is current and fresh and is reflected in the high level of expertise of our staff.

Over the last five years we have relocated all four of our offices to buildings with improved, modern and fresh interiors. This led to the creation of a more comfortable working environment for all.

Finally, we invest heavily in our IT infrastructure; we are ahead of the game as concerns our case management and deadline monitoring systems.

As a firm that counsels start-up businesses on an array of legal matters, what are the main principles you advise SMBs to adhere by?

Above all, IP is a very specialist area of the law and SMBs need to take specialist advice early on.

IP is not an unaffordable luxury; it is, more often than not, the main asset of a business. Once a SMB understands that point and invests in their IP, we tend to witness significant growth of their business. The opposite can also be said; businesses that view IP as a side-line don’t tend to grow in the same healthy manner. Fortunately there is a greater awareness and understanding of the value of IP now than 20 years ago, and so this advice is adhered to more frequently than before.

It takes time and effort to implement an IP strategy, but it’s time well spent. Those SMBs that adhere to this principle experience greater rewards five or 10 years down the line than IP shy businesses.

The value of an IP portfolio changes with time. It is imperative to review an IP portfolio on a regular basis, and we recommend at least an annual review. By reviewing the IP portfolio in tandem with the progress of the business, SMBs can easily detect gaps in their portfolio and fill them, ensure that valuable IP is maintained, and sell, license out or let lapse those rights that are no longer relevant to their business.

Lastly, in the case of branding in particular, it is crucial to maintain watching services to monitor the IP rights others are seeking. Such services can be provided on a trademark, company name and domain name basis. Watching services provide SMBs with the opportunity to become aware of potential problems at an early stage, and the possibility of nipping problems in the bud through cost-effective negotiations with the conflicting business.

Watching services for patents and designs can also assist a business in keeping abreast of the latest innovations in their field and by their competitors.

How has the firm’s 2008 re-branding impacted the work you do?

Prior to 2008 we traded under the names Forrester Ketley & Co, Forrester & Boehmert and Forrester Mostek. We took the decision to rebrand simply as Forresters for all of our business activities (being a name many of our clients were using to refer to us at that time). We created colourful, eye-catching branding and, importantly, we also adopted our slogan ‘Clear Direction’. We endeavour always to provide clear direction in the advice we give to our clients and in our internal communications to our employees; reflecting our slogan in our brand. It sounds obvious, but businesses have so many matters to focus on nowadays that it is essential to provide clear direction. A simple name and a simple but effective slogan reminds us to always provide practical, business orientated advice in a proactive manner, which makes life easier for the client. The provision of a responsive and tailored service and ‘clear direction’ has, we believe, aided client retention and increased new client referrals.

Forresters is considered one of the top global firms in IP, how do you uphold this reputation, and in what ways do you believe the firm sets a benchmark for the industry?

Forresters has thrived for over 130 years by adapting to change, keeping ahead of the game and by always listening to our clients.

On the issue of client relations, it is important to make life easy for the client, whether it is a SMB, large multinational or instructing attorney. We pride ourselves on providing a quality and responsive service. We are always looking at ways to improve, and by creating an open dialogue with our clients we are able to the tailor our advice to suit their requirements.

As implementing trademark protection can be lengthy and costly, how do you minimise this process for businesses you advise?

We meet with our clients to discuss their priorities, aims, needs, time frames, budgets, and generally to ensure that we fully understand their business. By taking a collaborative approach, and not having preconceived ideas about what should be done, we act as an integral part of our clients’ team.

Many clients do not have clear strategies; by meeting and talking we are able to suggest sensible, bespoke solutions that reflect their particular criteria. If a client has a big project we break it down into easily managed sections, so as to maintain a clear focus. We also provide updates on a regular basis, so that clients do not lose sight of the bigger picture.

Once a clear strategy is in place we can provide timescales for implementation and likely costs. While trademark registration processes can be lengthy and costly there are many ways in which we try and minimise time and cost by making use of various international registration processes and having agreed, streamlined working procedures, particularly when working with overseas attorneys.

How has your work changed on the back of the EU’s newly introduced Trademark Reforms?

Surprisingly little so far, many of the reforms introduced to date reflect case law decisions which are already common practice. Other reforms simply act to clarify matters, such as the renaming of the Office for Harmonization in the Internal Market (OHIM) to the European Union Intellectual Property Office (EUIPO), and the Community trademark to the European Union trademark.

The revised fee structure for EU trademarks may result in a drop in opposition, revocation and invalidation filings. This is because the official EU trademark filing fee now only covers one class rather than three. Previously applicants were tempted to (and did) file applications covering an unnecessarily broad specification of goods and services. This in turn led to registrations for trademarks which the proprietor had no intention of using. If the newly implemented structure results in less superfluous classes when filing fresh applications and upon renewal (as a similar fee structure has been implemented regarding renewals) this should lead to a register which reflects more accurately the commercial reality. We welcome this change as it means that clients will be able to free up time and budget currently used to prevent others obtaining rights which might weaken their portfolio and instead invest in the strengthening of their rights.

Following the 2012 ‘IP Translator’ case, the EUIPO changed its view that class heading wording was deemed to cover all goods/services in a class. Now the wording of a specification is read to encompass only those goods/services falling within its literal meaning, be it a class heading or not. The reforms included a provision under which European Union trademarks filed before 22 June 2012 and which covered a class heading, could be amended by notification to the EUIPO that the registration was intended to cover goods and services beyond the literal meaning of the class heading. Many continental European attorneys had been in the practice of using class headings and would have needed to take action to amend their clients’ registrations. Historically, we have rarely suggested that the class heading be used by clients when filing their trademark applications; we prefer to understand their business well and for them to file applications that reflect the nature of their business. By investing time with the client from the start, and discussing the specification they require, less objections are raised by examiners, less opposition, revocation and invalidation actions are encountered, and a more streamlined and cost effective filing strategy is created.

The reforms are being implemented in stages. We foresee the most interesting stage entering into effect next year when the requirement for a trademark to be capable of graphical representation will fall away. We are in discussions with clients regarding how that may affect what they are able to protect, and the potential value in doing so. In particular, sound marks should become easier to protect as we envisage sound files will be able to be uploaded and deemed an acceptable representation of the mark.

The unstoppable technological disruption of the legal sector will force firms to emerge from the veil of secrecy into a new era of transparency and openness, says Dominic Zammit, Head of Digital at global brand consultancy Industry.

Here Dominic explains what the law firm of 2026 will look like, what will keep some ahead of others, and how technology is at the forefront of change in years to come.

It’s perhaps not surprising that the legal sector has so far held out against the kind of transformative change driven by new technology in other sectors such as banking and finance. Traditional in nature and reassuringly invested in the status quo, there has been some reluctance so far to adopt new technologies that could revolutionise the way legal practices work.

This is starting to change. Research by Fox Williams and Byfield Consultancy earlier this year showed that 83% of top UK law firms believe technology has the greatest potential to increase profitability. In the past year, 55% had invested more than £100k in new tech. That’s significant. But cultural change is needed as well as cash investment; a willingness to disrupt the status quo, remove the shroud of mystery, be open and transparent, and let clients see exactly where and how their fees are being spent.

The technological juggernaut is unstoppable. As the lines between home and work, personal and professional, become increasingly blurred, B2B companies find themselves playing catch up to the B2C tech trailblazers. After all, why shouldn’t the service we receive from our law firm be as slick as the service we receive from Amazon?

Law firms today face a stark choice. Invest now in being an early adopter. Separate yourselves from the competition, dare to be leaders, offering a new, different and better way of working that sets you apart from your peers. Or play catch up, risking cherished client relationships that are no longer guaranteed.

This presents a huge opportunity to players in the sector. Now is the time to position your brand as pioneering, innovative, a market leader, as well as to create an identity that is agile and scalable, that breathes the corporate brand as effectively in an augmented reality app interface as it does on a letterhead.

So what technology should firms invest in that will actually help them do their jobs, now and in the future? To answer that question, let’s peer ten years into the future and see how the legal landscape lies in 2026.

Highly efficient and agile virtual meetings

Firstly, the client meeting. Traditionally arduous, currently conducted either in person or over telecom/video conference from the office. By 2026, firms will use a combination of virtual reality (VR) and artificial intelligence (AI) to deliver a highly efficient and agile meeting experience, without compromising on the environment.

Participants will join in flexibly from home, the office or elsewhere, using VR hardware (which will by now be commoditised and affordable). They will enter a branded virtual meeting room, styled to the firm’s templates, with its proprietary AI system plugged in and performing a set of peripheral activities to ensure absolute efficiency during and after the meeting.

Since the billable hour is dead, it will record the session for tracking against client records, enabling it to accurately forecast costs for the next fixed fee project. It will track client concerns and recurring topics to feed into the firm’s knowledge management and legal prediction hub. Questions and scenarios will be monitored, delivering real time solutions to the partner based on a combination of the firm’s knowledge bank and its own machine learning.
Welcome to your client room

Client relationships will be managed online through dedicated client rooms, built within the firm’s proprietary practice management hub. These are effectively online portals where clients can see exactly what’s going on, including the real time tracking of work, pulled in from the firm’s time-tracking software. All financial information will be there in black and white, including payment facilities and Bitcoin exchange.

The client room will be the key point of transaction, collaboration and communication with the firm and will provide a real-time and transparent view of the overall relationship and individual matters. Legal practice won’t be so mysterious, there will be no fudging of fees. Clients will see exactly what has been done, how long it look and what it cost.

Real time consumer trends affecting client business lines will be drawn from the firm’s big data solution, enabling firms to identify macro trends that will affect their client’s business and help them to futureproof.

Real time, not 6 minute slots

Legal services in 2026 are commoditised and pre-priced based on big data predictions. Client reporting on time is automated, tracked through each lawyer’s tablet or, more likely, wearable device.

Time tracking software will be device agnostic, linking all portable, wearable and static devices to track lawyer activity across the board. Clients can now see, from any device, what each member of the legal team is working on at any one time, with lawyer efficiency monitored by a smart algorithm combining time spent and tangible outputs, feeding into the firm’s ongoing appraisal and remuneration process.

Client apps will herald an era of collaboration

In 2026 client apps will combine firm data, artificial intelligence and elements of augmented and virtual reality to meet client needs. Apps will enable clients to work collaboratively with their lawyers, using cameras on their devices to stream real-time footage into the app, carry out live risk assessments that, when combined with an AR overlay, highlight and record key risks on screen.

Drawing on existing firm data and AI machine learning, apps will deliver real time advice to the client, contact and engage the relationship manager and all necessary third parties, including insurers, authorities and even emergency services.

The legal workhorse

Over the next decade technology will play a lead role in helping firms achieve greater productivity, drive growth through greater efficiency and improve accuracy. Typical work undertaken by legal professionals will have undergone a diametric shift, with AI bearing the burden of process-heavy tasks such as due diligence, research, contract reviews and document production.

Human time will be focused on strategic, commercial and risk related matters, leveraging the firm’s proprietary data and systems to forecast opportunities for clients and protect against risks.

A proportion of time will be dedicated to training, enhancing and feeding information into the firm’s AI platform. These systems are only as good as the time and effort put into augmenting the machine learning process with human knowledge.

As business development time is now encouraged and measured, so too will AI time be part of the daily routine, with lawyers dedicating chunks of their working week to feeding the AI systems they now depend upon, with information.

Firms need to invest not just in the tech, but in the skills too. Expect to see Data Scientist and Apps Specialist on every team sheet.

There’s no doubt that the widening gap between legal fees (expected to exceed £1,000 per hour this year in top London firms) and the price most companies can afford to pay, makes the profession ripe for ‘Uberisation’, or transformative change. Technology already in its infancy can go far beyond digitising routine processes, to undertaking complex work, effectively automating legal advice.

October 2016 heralded the birth of Legal Geek, the world’s first LegalTech start-up conference, bringing together a new generation of tech influencers out to disrupt the legal sector. I have no doubt they will succeed. Ultimately, failure to act now will hinder a firm’s ability to compete on price or speed of work, against small, nimble LegalTech companies built on agility, efficiency and transparency. They risk being seen as slow, irrelevant, out of date and out of touch. This sends the wrong signal and may raise other doubts about the business. Do they understand the risks posed to me and my business? Do they employ bright young graduates? Are they up to speed with current trends and legislation?

In an industry where everyone has broadly the same professional qualifications, being different is challenging. Those that are quick to adopt new technology, invest in new practices and bring about cultural change within their firms, have a golden opportunity to position themselves as pioneers, stepping out ahead of the pack. Think of Amazon, Uber, Air BnB. Learn from the B2C sector and accept that there’s no hiding from the technological revolution impacting every aspect of our personal and professional lives. Futureproof yourselves.

Here to give us the story on the immigration and company formation complexities in the United Arab Emirates (UAE) is Aideen Hopkins of Executive Expatriate Relocations, a Middle-Eastern specialist immigration firm.

Aideen talks about the some of the updates surrounding immigration rules in the Middle-East, the challenges in timing and documentation pertaining to Visa applications, and gives a brief example of how the firm stands as a thought leader in this intricate legal sector.

What would you say are the biggest commercial immigration topics being discussed in the Middle East right now?

A number of nationalities must undergo stringent security checks as part of the immigration process and this can be a challenge for a company that has been through recruitment processes, as it can result in delays in the issuance of a resident visa or even a rejection.

Other rules are also being tightened up, and recently the Kuwait Ministry of Interior increased the minimum salary requirement for foreign nationals sponsoring spouses and dependents for family and visit visas, which may have an impact of the economy and labour market.

Are there any challenges involved in the company formation work you do? How do you help your clients navigate these?

When incorporating a company, certain activities may require a third party approval, for example, a plane charter activity requires a No Objection Certificate (NOC) from the Dubai Civil Aviation, which will have its own set of requirements, and we assist clients with this so that they may finalise company incorporation.

It can at times be challenging to obtain the required documents when incorporating a company within a free zone – a document issued in one country may be known as something very different in the UAE or may not even exist, therefore we need to work with the client to explain which particular documents are needed and what information should be detailed on them, so that we can match them with the similar documents in the home country, to satisfy the free zone requirements.

You deal highly in Visa application processes; what are the most complex steps involved in this and how do you make it quicker and easier for your clients?

The first challenge for all visa applicants would be document gathering and attestation. For many expats, arriving in the UAE is not necessarily their first overseas appointment, and if they have documents that have been issued in different countries (education degree, marriage certificate, birth certificates), it will be challenging to get these documents attested, as each country differs in terms of processes and timelines, potentially delaying the start of the visa application.

If a sponsor has a step-child, additional documents will be required (attested certificate of custody), and the visa application is processed through the humanitarian department rather than immigration, which has a different process and can take longer, as each application is treated on its individual merits.

The first step in the visa application process is the issuance of the entry permit. During this phase, all documentation is checked and verified, as well as the completion of security checks on the visa applicant. Depending on nationality and background of the applicant, the security checks can take a considerable amount of time and add significantly to the visa process timing, which is frustrating for the employer and the applicant.

At EER, we recommend an ‘Out-of-Country’ visa process, which allows for all the verification and security checks to be completed before the applicant enters the country. On arrival, they then complete the medical and Emirates ID formalities before completing visa stamping.

Can you talk to LM about a specific case you have dealt with in the past, to which you applied particular thought leadership?

It is unusual for a female employee to sponsor her husband, and the visa is usually granted for one year only.

We recently worked with a client in obtaining a three year visa for her husband. Key to the application was the preparation of the paperwork, in ensuring it was clear and well-structured with all supporting documentation available. We met with the immigration officials and clearly outlined the purpose of the application, explaining that the husband was a well-educated, qualified person. We recommended a three year visa and provided clear evidence of the sponsor’s professional qualification, responsibilities and salary.

As a thought leader, what do you offer that other firms don’t and why should clients come to EER for immigration services?

Communication is crucial in the immigration process and in ensuring that the client is fully aware of all the requirements prior to commencing the process, as well as being kept up to date along the way. We have seen a number of clients come to us being frustrated by the lack of communication and information they received from other providers. It is important to set and manage expectations at the start of the process.  Many clients come to us once they encounter a problem, and at EER we work with the client to find the best solution for their needs.

From protest and impasse, to reconciliation and understanding perspectives, here Lindsay R.M. Jones of the Emory University School of Law in Arizona, US, gives an in-depth outlook on the role of a ‘Transformative Voice’ in mediating public policy conflicts.

With a wealth of research and wisdom behind him, Lindsay is at the top of thought leadership in the field of advocacy and dispute resolution, as proven over the next few pages, in this outstanding piece that looks into the complex philosophies behind mediation.

There were two farmers whose houses were situated directly across from one another with a dirt road running between them. One farmer always dressed in red. The other farmer always dressed in blue. While they had lived on their farms all of their lives, neither spoke a single word to the other. Each saw the other as an adversary in the market place, despite the fact that one grew flowers, and the other tended bee hives and harvested honey. Each secretly wished the other bad fortunate for the other’s endeavors even though their individual success was dependent upon the success of the other. The understanding of this interdependence was beyond them, distorted by their lack of capacity to speak to each other, and to see the others’ perspective.

Upon seeing their conflict and the ill will that each harbored for the other, God decided to pay them a visit. As each farmer attended to their perceived self-interest, ignoring the other, God walked down the dirt road in the middle of their two farms. Without breaking stride, God tipped a beautiful hat adorned with flowers and a swarm of bees toward each farmer, and continued walking down the dirt road. The farmers looked up at the same time, and as they caught each other’s eyes affixed on God, they realized for the first time in their lives that they shared community with one another. They smiled at each other and began to share their perspectives of the experience, when the farmer in red said, “Did you see the beautiful red hat adorned with flowers that God was wearing?” To this, the farmer in blue rebuffed back, “What do you mean red hat, it was clearly a blue hat adorned with a swarm of bees.” Focused in their perceived differences in perspective, each let out a gruff, and returned to ignoring the other and harboring ill will toward the other’s endeavors.

Upon seeing their return to conflict and impasse, God turned around and walked back down the dirt road in the other direction, once again coming between the two farmers, and again tipping the beautifully adorned hat at each. This time each saw the other’s previously held perspective, upon which they immediately realized that the hat upon God’s head was red and adorned with flowers on one side, and blue and adorned with a swarm of bees on the other side. Upon this realization each began to laugh uncontrollably, brought on by their nervous acknowledgment of their wrong-doing to the other, and then embraced in friendship.

In this story, God advocates for neither side, but rather neutrally advocates for consensus in the farmers’ understanding of the truth behind their perceived differences in perspective. The resolution of their impasse and underlying conflict was predicated upon their mutual acts of contrition, represented by their humility as the source of their laughter, and upon their forgiveness represented in their mutual embrace in friendship. Contrition precedes forgiveness, forgiveness precedes reconciliation, and reconciliation precedes consensus.

There are a couple of points that I hope to illustrate in the romantic telling of this story. First, the role of the mediator is not passive, but deliberate and engaged; the mediator, that is, is not an absentee God in the presence of conflict, but actively seeks to illuminate the prospects for reconciliation within the actors themselves (please excuse the presumptuous nature of the metaphor). Albeit, the mediator’s deliberate engagement is nuanced and patient in nature, but nevertheless is methodically intentional by design, with the goal of enabling insight within the actors in conflict, so as to allow them to come into their own realization that a solution is not found in perpetuated impasse, but rather through reconciling the perceived underlying differences in their respective perspectives that gave rise to their conflict. I characterize this illustration of neutral advocacy as the ‘Transformative Voice’.

With respect to competently exercising the Transformative Voice in mediating public policy conflicts, pragmatically speaking, the mediator first must possess an understanding of the power dynamics that defined the parties’ relationship with one another. I contend that interdependent power structural arrangements may be observed within socioeconomic relationships that influence and shape the distribution of power within society, in which the actors in conflict relate to one another in a prescribed spatial power relationship. This spatial power relationship is generally observed as existing within a hyper-segregated hierarchical power regime, characterized by socioeconomic divisions defined by class categories or tribal based constructs, manifesting along bloodlines, ethnicity, race, religion, political identity, language, and cultural traits. I contend that reoccurring meta-power structural arrangements may be observed at the local, national, and international levels of society. Thus, they are global in nature, reliably rendering themselves as a guide for mediators to analyze the power dynamics at each level in society in which a conflict between actors might be observed. By evaluating the power dynamics of the actors’ relationship through the analytical lens of the proposed ‘Global Meta-Power Structural Arrangements’ model, I contend that the mediator can more accurately assess the strategic avenues to move actors beyond prescribed conflict voices that perpetuate impasse, inhibit mediation, and undermine consensus building by which to achieve sustainable conflict resolution.

These prescribed conflict voices might be characterized as falling into one of three levels of maturation: Protest Voice, Empowerment Voice, and Transformative Voice. The most primitive of the conflict voices is ‘Protest Voice’, in which the actor exhibiting this voice may be observed as lacking the capacity to command the institutional form and language of the power structural arrangements in which the conflict arises. Protest Voice limits the actor from identifying and articulating resolution in pragmatic terms, and pushes the opposing actor away from resolution, other than in limited circumstances where the opposing actor offers temporary distributive concessions intended to appease threats of a sustained, intense protest posture, as a means to preserving the existing power structural arrangements, which the opposing actor perceives as benefitting its power position in the hyper-segregated hierarchical power regime. This faux resolution outcome tends to be cyclical in managing impasse and does not deconstruct the power structural arrangements that give rise to the underlying conflict as a systemic phenomenon.

‘Empowerment Voice’ is exhibited in an actor possessing, at various degrees of capacity, an ability to command the institutional form and language of the power structural arrangements in which the conflict arises, sufficient to effect long term distributive concessions, sometimes permanent, however, like Protest Voice, actors engaged in Empowerment Voice are unlikely to achieve reconstruction of the power structural arrangements, instead they are more likely to engage in an effort to preserve the existing power structural arrangement to maintain perceived socioeconomic advantage, or to be unable to identify how the power structural arrangements might be reconstructed in a way that does not perpetuate the underlying source of conflict, namely the imbalances of inclusion and equity resulting from the hyper-segregated hierarchical power regime. Their disposition in this regard is based on their relative power position within the existing power structural arrangements.

Transformative Voice, when employed by the mediator, seeks to foster the realization within the actors of the existence of their complex interdependence, which when realized, establishes capacity within the actors to embrace Transformative Voice as their own conflict voice. It is through their maturation to Transformative Voice that the actors may cultivate and establish the spatial capacity for inclusion and equity in the mediation process. This maturation in conflict voice enables the actors to mutually reach contrition and forgiveness, by which capacity the actors are enabled to pursue the consensus goal of transforming the existing hyper-segregated hierarchical power regime, which defines their respective institutionalized power positions outside the mediation process, to sustainable democratized power structural arrangements embodying institutionalized inclusion and equity. The achievement of the deconstruction of the existing hyper-segregated hierarchical power regime, and therein the transformation of the existing power structural arrangements, results in the institutionalization of mediation processes within the new democratic power structural arrangements, which in turn ensures that future conflicts among the actors do not reach impasse or rise to a level that threatens the broader society in which the actors reside. Without intervention, socioeconomic conflict will proceed on a critical mass trajectory until socioeconomic implosion occurs. Thus, complex interdependence of socioeconomic interests calls for intervention through public policy mediation.

My formal research examining socioeconomic conflict resolution began with my post-graduate study at the Institute on Race and Poverty at the University of Minnesota Law School, where as a senior fellow I focused my studies on the intersection of race and poverty and its nexus to socioeconomic conflict, and generally studied the political economy of inequality. The product of this socioeconomic research resulted in my attending the 2001 United Nations World Conference on the Elimination of Racism in Durban, South Africa, at which I successfully advocated as a credentialed member of a NGO, for the inclusion of mediation processes based on my Transformative Voice and Global-Meta Power Structural Arrangements models, in the conference’s Declaration and Programme of Action, which was adopted by consensus by the international member states of the United Nations.

I first published on my work as one of a collection of socioeconomic research papers presented by international researchers, in a World Bank publication in June 2003, entitled ‘Durban Plus One, Opportunities and Challenges for Racial and Ethnic Inclusion in Development’. In the presentation of my paper at the World Bank, I called upon the international development banking community to invest in making operational the mediation models based on my work and as adopted UN members, or in the alternative, that the international banking community place structural adjustment requirements on investments with those member nations that adopted the Programme of Action, by which they obligated themselves to make operational the mediation processes based on my work. I hope to return to examine international banking community involvement in the operationalization of the mediation processes as a future research project. This accounting on my work through the University of Minnesota provides an illustration of my employment of the Transformative Voice in a strategic engagement at the international level, to engage the legislative and financial power structural arrangements at the international level to support the operationalization of mediation processes to address socioeconomic conflict at the level of intra-state power structural arrangements.

Since leaving the University of Minnesota Law School, I continued my research at the Emory University School of Law in the capacity of Associate Director of the Center for Advocacy and Dispute Resolution and Director of the Consensus Project. In the course of my work at Emory, I have facilitated the establishment of two ongoing cultural and conflict resolution exchange programs at Emory with sister universities in Mexico and China. I have also met and consulted on socioeconomic conflict resolution with Supreme Court justices, trial judges, criminal justice and human rights attorneys, and law professors from Liberia, Mozambique, China, and Mexico.

For the last ten years my research at Emory has focused on clinical studies through my pro bono work as a human rights attorney, representing immigrants and low income disenfranchised minority groups, and over the last six years as a part-time magistrate judge engaged in presiding over and supervising therapeutic criminal diversion programs designed to redress the traumatization of socially and economically marginalized minority young adults, whose socioeconomic condition contributed to their criminalization.

My current research examines the unsustainability of mass incarnation of high-at-risk youth from minority groups as a public choice to police the containment of the manifested ills of institutionalized socioeconomic marginalization. I have attached to the distributed copy of my presentation paper, a copy of my recently published article in the Daily Report, dated October 7^th, 2016, ‘Arrested Development Leads to More Unrest’. In the article, which was strategically targeted for publication in a state legal journal widely read by 47,000 prosecutors, public defenders, human rights attorneys, judges, and law and policy makers, in the State of Georgia, I sought to exercise the Transformative Voice, in an effort to informally initiate public mediation among members of the statewide judiciary and criminal justice system, and the affected marginalized communities.

My next step in the following weeks will be to begin work on organizing a forum on the issue to be held at Emory University School of Law, to which I will invite by publication invitation members of the statewide judiciary and criminal justice system, as well as representatives of low income minority churches and groups, and the general public. The strategic goal of the forum will be to produce a consensus among the stakeholders on the need for criminal justice reform, which might support the introduction of legislation before the Georgia General Assembly in the spring of 2017.

In the immigration law landscape, we also take a look at doing business in Nigeria, the obstacles, benefits, timescales and considerations to make. Here, Bisi Adeyemi, Managing Director of DCSL Corporate Services Limited talks to Lawyer Monthly about business immigration, establishing a company in Nigeria, investing, expatriate employment, temporary visas and the avenues to quicker establishment in the West African nation.

Are there any challenges involved in the business immigration work you do? How do you help your clients navigate these?

Key challenges relate to bureaucratic bottlenecks. The most recurrent is the delay in the production of Permanent CERPAC Cards (Residency Cards) for expatriates by the Nigeria Immigration Service after processing Temporary Permits. Expatriates who are issued with the Permanent Cards after three months of purchase of their CERPAC Forms typically experience some difficulties with the Immigration while travelling out or into the country.

We manage these problems by leveraging on our long-standing relationship with the Nigeria Immigration Service (NIS) to ensure timely processing of our clients’ Permanent CERPAC Cards.

What are the primary restrictions on temporary business visits in Nigeria?

There are typically no restrictions on temporary business visits to Nigeria. Extant Laws and Regulations allow for free and unrestricted access to business opportunities, Business Set up, as well as the repatriation of both capital and profits. Genuine investors are provided incentives that would encourage them to set up and do business in Nigeria in all sectors of the economy. The recently introduced ‘Visa on Arrival’ removes hitherto existing obstacles to the process of obtaining business visas by prospective investors. The Visa on Arrival allows access to Nigeria without the need to process travel documents in their home or countries of residence. Visas can be issued to such expatriates at the point of arrival in Nigeria. However, such expatriates must show genuine intention to invest in Nigeria and evidence of relevant financial resources to do so.

What are the steps and timescales involved in obtaining a business permit for a foreign company’s employees in Nigeria?

The steps for obtaining business permit for a foreign company which has not been registered in Nigeria are:

1. Incorporation of the company in Nigeria to enable it to qualify for grant of business permit and expatriate quota positions.
2. Importation of capital through authorised channels.

• Submission of the application with the requisite documentation and active follow up.

It takes approximately 6 to 8 weeks to process a business permit.

Companies with Expatriate shareholding must show evidence of a minimum of N10,000,000 (approx. $32,000) authorised share capital before they can be issued a Business Permit.

To enable a company employ Expatriates, it must apply for and be issued with an Expatriate Quota. This is a form of permit granted to qualified companies to employ the services of expatriate personnel. The Expatriate Quota is issued by the Federal Ministry of Interior and administered by the Nigerian Immigration Service. The training of Nigerian understudies is a key component of the Expatriate Quota policy.

Companies who do not require the services of full-time expatriate employees may apply for a Temporary Work Permit on a need basis. A Temporary Work Permit is issued for a short duration (2-3 months) to Expatriate Personnel with relevant technical expertise to enable them execute short term assignments like post-purchase installation service, technical and delicate engineering services, and special upskilling training services for local employees. It takes 5 to 10 working days to process a Temporary Work Permit.

Does this process apply equally to all business professionals, regardless of skill standard or net worth, and what particular benefits and services are these business claimants then entitled to from the government?

Professionals with relevant expertise are given priority in the issuance of immigration facilities. This is done with the aim of having qualified Nigerians understudy such Expatriates and acquire the underlining skills, such that it would enable them occupy the positions and job roles for which the expatriates were invited to Nigeria in the future.

However, the Immigration Act 2015 aims to encourage investors who are willing to make a minimum threshold of investment in Nigeria. Such investors would be issued with a Nigerian Residency Permit. This is a deliberate measure to enhance the inflow of Foreign Direct Investment into Nigeria. This is in addition to other tax incentives available to genuine investors in Nigeria.

From treating dry eyes and eye strain, to reporting on complex eye related injuries in court, our next thought leader is a medico-legal professional with an array of expertise in the medical sector.

Professor Charles Claoué, a Consultant Ophthalmologist here discusses the problems in private healthcare insurance, what happens when legal and medical matters intertwine, and how the general awareness of solutions available could be improved on. Charles also delves into the experiences that brought him to the reputable position he now holds, and gives Lawyer Monthly an outlook on the proactive attitude necessary to be a thought leader in this field.

Are there any particular medical matters that often arise in your work from patients in the business and financial sectors?

My patients tend to have problems related to their environment, so they have a lot of dry-eye problems because they tend to work in air conditioned offices and it is a screen heavy environment. They often suffer from eye strain related to screens that are too bright, too contrasted or just at the wrong distance.

And what are the solutions you provide for those problems?

The solutions are often to just to have a bowl of water in the corner of the office to increase the humidity and the judicious use of artificial tears and advice on appropriate contrast and brightness of screens and appropriate working distance. There’s the misbelief that having screens very close helps and in fact it is much more tiring to have it too close and often just moving the screen to arm’s length makes a big difference.

Do you think many of these people who come to you with these issues were previously aware that was the problem behind it?

No, usually not. For me, it is obvious, but it is specialist knowledge. No doubt what they do, I wouldn’t understand either.

As a specialist in ophthalmology, what are the legal considerations you must make day to day, to cover you and your team?

The first thing is, are you giving the patient the right treatment? In other words, would other surgeons offer, broadly speaking, the same treatment? The second thing is, does the patient have an adequate understanding of what is proposed, in order to give consent. And thirdly, you must take appropriate care to minimise the risks associated with surgery.

What might those be?

It is very difficult as you operate as part of a team, but as much as possible you want to make sure that no solutions or drugs are changed for reasons of cost, without being sure that there is no compromise of safety.

How do you make everyone is fully aware of possible changes?

There are protocols and guidelines and it should be known that nothing should be changed without it being considered by the doctor involved in the case.

How often are those considerations ignored?

It happens occasionally and usually it makes no difference, but if something is changed without reference to the doctor, it can result in a medico-legal case which is difficult to defend, as the doctor takes final responsibility.

Are there any further legal considerations to make in relation to children you work with?

I don’t work with children, but in the profession in general the problem with children is consent. There is a grey area where children can express their feelings and this, in the family court, it is called Gillick competence. If a child is of age to be Gillick competent and you do not take their opinion into consideration, then you can be in trouble even if the parents have given consent.

Are your patients always aware of the legal matters involved in their medical matters?

Patients are often not aware of the legal matters involved in their medical care and they are usually not aware that there is a simple contract for the provision of medical services for which they have financial liability.

Patients that are victim to this are those who have private healthcare insurance, as they think they are absolved from any financial liability. The industry has changed and become more aggressive about the profits from an insurance business. Therefore, insurance companies have tried to reduce payments to doctors for the provisional medical services, and as an example, most companies will only pay doctors one third of what they paid twenty years ago for cataract surgery, despite it becoming a more complex procedure with much higher patient expectations.

What has been the response from your field?

Most senior consultants have decided to detach themselves from insured patients and so, many insured patients cannot find senior consultants to provide services and have not usually been informed by the insurance company, when their contract between the patient and the company was incepted.

So how would you advise, especially people in the business and finance sectors, to be aware of these procedures?

Well I think that is very difficult as they are usually in group policies. What I do with all insured patients is sit them down at their first consultation and explain that they are likely to face a shortfall and they will be liable for this amount. For twenty years, I have had them sign a term of business, in which this is made clear in simple English language. Nevertheless, this is a recurrent problem that patients think that as they are insured they have no legal liability.

Are there any changes you would like to see happen, in terms of how those procedures are performed?

Insurance companies need to make it clear to clients that despite having insurance they may still face a shortfall. This would make it much more analogous to motor insurance, where insurers already state that if you go to these garages you won’t have to pay anything, but going to another garage may result in charges; as far as I am aware that has not damaged the motor industry insurance and I cannot see any reason to why it would damage private health care insurance.

Why do you believe you are a Thought Leader in this field?

The first thing, as I have always told my trainees, that I am an “average surgeon”. The reason for this is that as soon as you believe you are above average, you stop learning. If you believe you are average you will always be trying to improve, and as such you will be up-to-date and trying to do better with every medico-legal report. Until I stop practising I will be an average expert, but always hoping to do better.

As a member of the Academy of Experts, what have your experiences taught you to learn and expand professionally? How do you believe your expertise in medicine can still be furthered?

Over the years I have learnt to be much more critical of my report and try to look at them perhaps as the judge would look at them. I try very hard not to stray out of my area of expertise; I try to answer the questions that are asked of me, but not to volunteer opinions unless I think they are important for the judge to hear.

It is true that you never stop learning in medicine; you should be going to regular teaching lessons, you need to go to national society meetings and probably supranational society meetings on a regular basis in order to be always learning something new.

Do you have a mantra or motto you live by when it comes to helping your clients?

I have two: the first is Theodore Roosevelt’s ‘The Man in the Arena’:

“It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly; who errs and comes short again and again; who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at the best, knows in the end the triumph of high achievement; and who, at worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat.”

The second is from Calvin Coolidge:

“Nothing in the world can take the place of persistence.

Talent will not; nothing is more common that unsuccessful men with talent.

Genius will not; unrewarded genius is almost a proverb.

Education will not; the world is full of educated derelicts.

Persistence and determination are omnipotent.”

The slogan “press on” has solved and will always solve the problems of the human race.

What three qualities do you think make a thought leader, and let’s look at this from a medical perspective?

Undoubtedly, intelligence has to be one of the three qualities. I think having a maverick personality, is probably the second one; and thirdly, luck!

How do you measure your professional success?

My first measure is the gratitude of my patients. The second is the recognition by my peers in medicine. Thirdly there is the gratitude and recognition from my colleagues in the legal profession. And of course, without the love and support of my family, nothing would be possible.

Dr Michael Dawson MIfA FSA has years of experience in archaeology and cultural heritage. As an expert witness he faces the challenge of balancing development and the conservation of British cultural heritage and often finds himself dealing with cases from archaeological impact assessment. He speaks to us about his favourite type of case, the challenges he faces as an expert witness, and the legislative amendments he would like to see.

What are the flagship archaeology & cultural heritage cases you have been involved with over the years?

One of my most important cases was APP/E2530/A/08/2073384, Thackson’s Well Farm, Sewstern Lane, Long Bennington, Newark, Lincolnshire NG23 5EX before Mr Lavender and concerned a windfarm in the Vale of Belvoir. Acting for English Heritage (now Historic England) the case concerned the impact of a proposed windfarm on the significance and interrelatedness of heritage assets. My case was that the turbines would disrupt and compromise the relationship between Harlaxton, a Grade I listed house and St Marys Bottesford, on which the house had been deliberately sited, so that the spire of the church formed a focal point at the end of the drive between two flanking hills; the turbines were also visible on the sky line on key views from Belton House, another grade I listed country house.

Can you talk LM through what your role as an expert witness involves in this legal segment, with particular regards to conservation?

My role as an expert witness involves the preparation of heritage statements in cases involving appeals against listing, impact on setting, on historic character and on character and appearance. My role often begins with an assessment of the heritage impact set out in a planning application or listing proposal. The former involves critical appraisal of an application drawing out the strengths and weaknesses in light of both case law and inquiry decisions. In challenging listing proposals by Historic England on behalf of DCMS, it is always the case that detailed research is necessary to establish the correct nature of heritage signficance.

In relation to planning appeals, once the parameters of a case have been established, these are presented to a case conference, before a proof and Statement of Common Ground are drafted. At this stage the need for further information to clarify points in the original application are made, though not new information. This can include visualisations to demonstrate impact or further analysis of sources. The key issues are often establishing the correct level of heritage signficance, using guidance and policy where appropriate to establish special interest, character and appearance or setting depending on the heritage assets concerned.

Close consultation with counsel prior to the inquiry or submission of written representations is essential.

As an expert in archaeology, what are the biggest risks to look out for in your expert witness role?

The most common factors are inadequate assessment of signficance. Significance is the current terminology in the National Planning Policy Framework (NPPF) and equates to the special interest (of listed buildings in the Planning Listed Buildings and Conservation Areas) Act 1990 secs 66 and 72).

The second greatest risk is that current research is not adequately understood, when assessing the potential impact of development on below ground archaeology; in particular where landscape patterning can undermine a case where historic trends might suggest a higher signficance.

In your instructions as an expert witness how do you assess the faults that could result from these risks?

The principal faults which emerge from instructions concern the inadequate expression of signficance, misunderstanding setting, mis-interpretation of character and appearance, and inadequate awareness of special interest. The key to understanding all these issues and presenting a robust case is attention to detail, a clear understanding of the policy context and an appropriate level of targeted research.

In dealing with planning matters pertaining to buildings, what are the most common concerns raised, and how are they usually resolved? Do you have an example?

The most common concerns are the impact of proposed changes to the historic fabric of buildings or the impact of extensions or development within their settings. These issues can be resolved by face to face meetings on site to address misconceptions; research to establish the precise nature of impact on historic character is especially important where the loss of fabric is an issue, or visualisations demonstrate an impact on setting.

In a recent case concerning development at Shipston on Stour Road, (on behalf of Orbit Homes),[1] where the appeal was allowed, the refusal was based on the impact on the nearby Conservation Area, the Victorian cemetery, and several listed buildings including the nearby Manor House. Direct impact on ridge and furrow had also been cited in the refusal. Addressing impact required not only a robust case to challenge the council’s decision presented by the leader of Stratford on Avon council but the third party representations by the owner of the Manor House. Its signficance was linked to Shakespeare’s ‘Henry IV Pt 2’ and with the production of the famous earliest English tapestries, known as the Sheldon (or Barcheston) Tapestries. My statement needed to demonstrate clearly that the visibility of housing development did not automatically constitute harm to the heritage assets.

What are the complexities involved in planning for government agencies and local authorities?

CgMs works principally for commercial developers. Occasionally we act on behalf of local authorities or government agencies either as expert witness at inquiry or providing supporting evidence at local plan inquiries, site allocations or informal hearings. The complexities of acting in this way largely relate to good communication with all parties and where necessary liaison with local or community groups to co-ordinate responses and ensure evidence is focussed, consistent and adheres to professional standards such as those of the Chartered Institute for Archaeologists or Landscape Institute (for visualisations).

The firm works on a variety of historical & cultural matters; which types of cases do you find most enjoyable/rewarding and why?

CgMs works on wide variety of cases from archaeological impact assessment to the impact on historic buildings and landscapes. The cases I most enjoy are those related to setting.  These involve a complex array of assessment and understanding from the significance of the heritage asset, the nature of its setting and the contribution that the setting makes to signficance. Cases of this type require a wide understanding of heritage assets in the landscape. Setting can include a number of heritage designated and non-designated assets. Their inter-relationship must be understood before any assessment of harm can be represented. These are the most rewarding cases because they have generated a significant body of case law since the Barnwell decision[2] and involve a high level of interpretation. They demand good communication to ensure the concepts of settings and the contribution of setting is understood.

Are there any UK legislative amendments you would like to see facilitate your work as a consultant, and also as an expert witness?

I would like to see accreditation by the professional body (CIfA for archaeology and the historic environment) made a statutory obligation and conservation and archaeological advice made a statutory obligation for local authorities.

What would you say makes you the go-to specialist for archaeology and cultural heritage law?

Over 30 years’ experience of archaeology, cultural heritage and historic buildings. Expertise in assessment, evaluation, mitigation, and issues such as setting to Scheduled Monument Consent, conservation area appraisal, contract compliance and significance. I am experienced in the application of NPPF, Environmental Assessment in areas including renewable energy, minerals planning, housing, leisure, urban regeneration, industrial development and tourism.
I have experience of the County Court, of public enquiries, planning hearings and have published widely. I have contributed to guidance produced by the Highways Agency on the impact of road schemes, and the Institute of Civil Engineers on contract.

I work with many different legal practices including No5 Chambers, Eversheds, Marrons, Sharpe Pritchard LLP and on behalf of developers from individual owners to volume house builders and I have wide experience of development and cultural heritage.

[1] APP/J3720/W/15/3007063 Land off London Road, Shipston-on-Stour, Warwickshire

[2] Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ

What happens if a business develops and commercialises a software system that functions the same as yours, and imitates the copyrighted disclosures of your patented software? How can you prove that their software doesn’t simply use the same systems other similar software uses?

Brooks Hilliard CMC® CCP, President of Business Automation Associates, Inc., a computer system specialist firm, has the answers. Here Brooks talks to Lawyer Monthly about his expert witness role in this field, the challenges faced by Courts, the various types of cases he in instructed on, and gives insight into the changes that have shaped this expert witness role through the years.

In cases pertaining troubled software implementations, what is commonly involved in your role and how lengthy and complex can the investigation process become?

My cases are approximately evenly split between those where I am engaged by counsel for the provider of the software or services, and those where I am engaged by counsel for the customer. Sometimes I get engaged early in the process by counsel for the prospective plaintiff (which could be either the customer or the provider) and am asked to investigate the merits of the potential claim, but the engagement more often begins after the suit has been filed.

Most of these projects include discussions with the litigant’s key personnel and the review of thousands of documents, including contracts, pre- and post-contract representations by both parties, e-mails, specifications and deposition transcripts.

The complexity depends on the length of the implementation process, the number and type of discrete software modules involved, the amount of customization required and/or committed to and whether fraud is alleged, among other factors. Cases of this type settle more often than they go to court, but the settlement often does not occur until after expert reports are submitted and the experts on both sides are deposed.

My efforts would typically last from several months to a year, but some cases take several years before they settle or go to trial. However, the effort is uneven, with peaks at the beginning when I am gathering data and during the time when I’m preparing my expert report.

What kind of cases do you get involved in?

The most common are Intellectual Property cases. I’ve been involved in several copyright cases where alongside the issues I often deal with, I needed to determine whether the defendant’s actions involved commonly known practices that were consistent with normal industry customs, or whether it would not be possible to do what it did without using the disclosures in the copyrighted materials. The trade secret matters are often similar except for the lack of a copyright.

My patent engagements have typically involved software or hardware functionality for business applications such as order processing, manufacturing control, scheduling and the like. Of course, several recent US Supreme Court decisions have been changing the ground rules for software-related cases.

What other types of cases do you get involved in?

One other major area for me is software licensing and systems contracting. I’ve done more than 200 consulting projects over the past 30 years that involved the acquisition of business software and systems, most of which included working with my clients’ attorneys to assist in negotiating the contracts; so I know what these contracts customarily cover.

In addition to the defined terms that usually appear in these contracts, most of the ones that go to litigation also have critical computer industry terms of art that are undefined and would not have an obvious meaning to the finder of fact. My role in these cases is not to interpret the contract, but rather to explain the meaning of these terms of art, and how this meaning relates to the dispute, so that the Court or the jury can interpret the contract and reach a decision.

I also do some electronic discovery engagements, the most interesting of which are the ones where one party alleges that the other one has tampered with the electronic documents.

In the 30+ years you have been practising, what would you say have been the milestones of change within this expert witness role?

The biggest change has been the advent and evolution of the Daubert process, which has had the positive effect of making sure that experts are qualified to reach opinions in the areas they are testifying about.

In the US the role of the expert is still almost exclusively one with duelling experts, each one engaged by the attorneys for the opposing parties. But I have also worked in disputes where I was engaged by both opposing parties jointly, and others where the opposing parties’ experts worked together to provide a joint report, with an attempt to agree on as much as possible with dissents summarizing areas of difference. I look forward to having more engagements like this in the future.

As Head of the Planning team at Burness Paull, a leading Scottish commercial law firm, our next expert has vast experience in the details of planning law and the progress therein. Here Elaine Farquharson-Black gives some insight into the development of planning law in Scotland over the last few years, with a complex history of statutes dating back as far as the 1800s.

Can you tell me a little about your role in planning?

As the Burness Paull planning team advises on all aspects of planning law, policy and procedure, my role is extremely varied, which keeps things interesting! Our team is widely recognised for its expertise in major infrastructure and energy developments (particularly in the oil and gas and renewables sectors), housebuilding, leisure, compulsory purchase and negotiation of planning obligations. Unusually, we have a senior chartered town planner within our team and regularly submit planning applications for clients.

How do you navigate the inevitable challenges that arise within your work to steer your case towards a successful outcome for your client?

We act for both the private and public sector and for individuals as well as multi nationals, so it is important to understand what the client wants to achieve and recognise the different drivers behind a client’s decision making process. We like to be involved with the project team on a development as early in the application process as possible, so that we can provide tactical guidance from the outset, giving the client the best possible chance at appeal should that become necessary.

Which types of planning work do you find most complex and why?

Compulsory purchase and compensation is one of the most complicated areas of planning law as the legislation is set out in various statutes and amending statutes, dating back to 1845. Clients affected by compulsory purchase find the system difficult to understand, and often emotionally draining as they may be losing their home or business. Hopefully that may all be about to change! I sit on the Committee of the Scottish Compulsory Purchase Association, which has been assisting the Scottish Law Commission in reviewing the current legislation with a view to reform. Their report is currently being considered by the Scottish Government.

What are some of the biggest talking points currently in planning law in Scotland?

The speed of the planning process (or lack of it!) is always a concern. The Scottish Government has just published the statistics for April-June 2016, which reveal that the average decision time for a major application is 39.3 weeks. This is 13 weeks longer than the previous quarter and the longest since Q4 2014/15. If a legal agreement is required, the average time rises to 59.3 weeks, some 43 weeks longer than the statutory period for determination. Many planning authorities are looking to introduce standard form templates for legal agreements, but often it is lack of resource which is the issue, with agreements being dealt with on a “first come first served” basis.

Do you see the need for any changes to planning law in Scotland?

The planning process is regularly blamed for holding up development. In September 2015, the Scottish Ministers appointed an independent panel to undertake a “game changing” review of the Scottish planning system with the stated intentions of streamlining the process and ensuring that planning plays a more positive and effective role. Focusing on six key themes of development planning, housing delivery, infrastructure, development management, community engagement and leadership, skills and resources, the panel made 48 recommendations of change. The Scottish Government has established a number of working groups to explore the key themes further and hopes to publish a White Paper outlining the proposed reforms before the end of the year.

How realistic is it that the desired outcomes will be achieved?

Around 10 years ago changes were made to the Scottish planning system under the badge of modernisation, with an emphasis on culture change. So ‘development control’ became ‘development management’, but it is clear that those changes were not widespread enough. This review is looking behind the scenes at issues which are often cited as holding up development, such as delivery of infrastructure and leadership, resourcing and skills. If changes are made in these areas, then this review does have the potential to be “game-changing,” but it will require much more collaboration among those involved in the development industry.

Neurosurgery is the medical niche pertaining to the nervous system, in particular the brain and spinal cord, and medico-legal cases related to this field can involve a number of scenarios, as explained below by our next expert witness.

Lawyer Monthly here talks to Helen Fernandes, a top tier senior specialist in the UK’s neurosurgery landscape, and an expert witness often called upon to report on cases surrounding this niche sector. Helen gives a great example of a case that explains her expert witness role, and gives the ins and outs of the challenges and complexities involved in her work.

What are the most common cases you deal with in neurosurgery instructions?

My medico-legal (ML) practice is very varied, from neck and back personal injury cases, to catastrophic brain and spinal cord injury cases, negligence work and criminal murder cases involving head injury. Having an interest in paediatric neurosurgery means that I am involved in a lot of non-accidental injury cases.

What kinds of complexities are involved in providing neurosurgery analyses for the court?

Some cases are straightforward and are often just simply a statement of fact with consideration to condition and prognosis. Other cases may be much more complex;  for example contributory negligence from a head injured individual who was not wearing a helmet, life expectancy after a devastating head injury in a child, or causation in terms of outcome from a delay in diagnosis. The list can go on, but the right answers involve good joint discussions and understanding between lawyers and doctors.

As an expert witness in neurosurgery, to what extent do you get to engage the full capacity of your expertise? Do you have an example?

I was involved in a criminal murder case some years ago. A drunk driver had driven his vehicle off the road, crashing it into a ditch. He absconded from the vehicle, leaving an unconscious passenger. The car and the dead passenger were found the next morning. At post mortem it was found that the passenger had not died instantly during the crash, but perhaps had lived for 4 hours afterwards. It was alleged that if the driver had called an ambulance at the time of the incident, the passenger would still be alive; at the time he would have been taken to hospital and thus alive later.

I was instructed for the Defence. I set about an analysis of the head injuries sustained by the passenger to include the prognosis, even if he had been afforded hospitalisation and treatment. I felt the injuries were in the most part unsurvivable. However, I also researched ambulance transfer times and the time it would have taken to get the passenger to the nearest Neurosurgical Unit, given he would have been taken to his local hospital first. All trauma unit audits and neurosurgical admission data pointed to the fact that it would take an absolute minimum of 4 hours to transfer the injured passenger to a Neurosurgical Unit, the average was much higher. Therefore even if the driver had alerted the emergency services to his passenger’s condition immediately, on the balance of possibilities, the passenger would have died before any treatment could have been given, and my evidence further indicated that that treatment would have been fruitless. The Defendant was acquitted.

What makes you the go-to expert witness in this field?

As a now senior neurosurgeon, I have a wide range and depth of expertise to draw on for my ML work; I have a critical and open mind; and I read widely and construct my opinions with care and reflection. My reputation as a leading, able and respected neurosurgeon adds gravitas to my opinion.