Conclaves: Court sees benefits of a facilitator

The conclusion was that the one factor most likely to predict a productive and useful Joint Conference and Joint Report was the presence of an independent experienced legal practitioner, preferably a member of the Bar, acting as a facilitator.

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October 24, 2017
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In the case of Coffey v Murrumbidgee Local Health District [2017] NSWSC 1441 the Defendant sought the appointment of a facilitator for a medical negligence conclave and offered to bear the additional costs. The plaintiff objected. In appointing a barrister as facilitator Justice Campbell said:

[9] I am familiar with the role referred to in the rules as “facilitator”, sometimes referred to in practice as “moderator” and, of course, as “chair”. It has been my experience that the involvement particularly of a member of the bar in that role can be invaluable, and the involvement of a person in those roles however designated in the given case assists in the administration of justice, and in the provision of the joint report by the experts, which is likely to be provided in proper form. This is of assistance to the parties as well as the Court in the resolution of the case.

[10] I think it can be said that an experienced member of the Bar, especially Senior Counsel, can be relied upon to thoroughly know the proper role of the expert witness and the purpose and function of the joint conference and preparation of a joint report. Given that, I think it is very unlikely that someone in that position, and certainly not Mr Blackett, would be tempted to put himself or herself in the shoes of the expert, or take over their deliberations, or depart from the assumptions and questions that have been agreed between the parties and submitted to the experts for their deliberation. In my judgment this is a case which will benefit from the involvement of Mr Blackett chairing the joint conference.

Conclaves and Facilitators

Some time back I jointly delivered a seminar with E.G. Romaniuk S.C. of Jack Shand Chambers on Conclaves. We ended up delivering it more than a dozen times, starting with the Law Society of NSW and then by invitation to a range of major firms around the city. It was based on both legal research and more importantly research with about 50 experts who had experience with conclaves.

The conclusion was that the one factor most likely to predict a productive and useful Joint Conference and Joint Report was the presence of an independent experienced legal practitioner, preferably a member of the Bar, acting as a facilitator.

The one factor most likely to predict a complete debacle or an otherwise less than optimal outcome was the absence of an independent facilitator.

The surprising thing is that while the research also showed that it is almost always both cheaper and more effective to have a facilitator than not to, there is still resistance.

Bruce Smith

Questions or feedback on this topic welcome to:

BSmith@expertexperts.com.au or brucesmith@jackshand.com.au

Enquiries about Expert Experts:

http://www.expertexperts.com.au/ or 02 8078 0700.

These seminar notes are not legal advice. I regularly conduct discussion groups on discrete issues in different areas of expert evidence to promote thinking amongst expert witnesses in the field. It’s been suggested my short synopses of these seminars might be of interest to others. If they are I’ll post more.

Legal Seminars: I regularly present seminars on different areas of expert evidence for the Law Society of NSW. Many of these are co-seminars with experts discussing the interaction of the law and their field of expertise and allowing solicitors an opportunity to meet and ehar from the experts they brief. I also present these seminars with experts to larger firms and insurers for whom sending large numbers of people to the Law Society seminar is not practical.

Next Law Society seminars – Forensics 6 Part Series – February 2018:

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