Conclaves, or Joint Conferences and Joint Reports, have become the default position for expert evidence in NSW.
The net effect of this process is that the expert issues will be determined, or largely determined, before the Hearing and usually in the absence of the parties and their legal representatives. (Interestingly this only applies to civil proceedings as it was not considered appropriate to have criminal proceedings effectively determined in the absence of the accused.)
The only way to protect your client, and your firm, from a perverse outcome from a conclave conducted by non legally trained experts in private is to appoint an independent facilitator.
Pursuant to UCPR 31.24 the Court may direct expert witnesses; to confer… generally or in relation to specified matters”; and; “to endeavour to reach agreement on any matters in issue”; and’; “to prepare a joint report specifying matters agreed … not agreed and reasons for any disagreement”; and; “to base any joint report on specified facts or assumptions of fact”; and; “May do so at any time…before or after the expert(s)…have furnished…reports.
The Court may direct that a conference be held “with or without .. the parties or … legal representatives”; or; (attendance) “at the option of the parties”; or; “with or without .. a facilitator (… a person independent of the parties…who may or may not be an expert in …the matters in issue.)”
Unless the parties affected agree the content of the conference … must not be referred to at any hearing. The joint report may be tendered at the trial as evidence of any matters agreed”; and; “in relation to any matters not agreed … may be used or tendered at trial only in accordance with the rules of evidence and the practices of the court” and ”except by leave of the court a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report”.
At the bottom of this profile are brief details of a number of the experts that Expert Experts represents. Call our office to discuss your requirements and to obtain a recommendation that suits your needs and budget.
Expertise in Action
Who is a facilitator and what do they do?
A facilitator is a legally qualified person with a strong understanding of the law of expert evidence, and often an understanding of the field of law within which the experts are being called.
They make sure that the conference happens as scheduled and take care of administrative arrangements.
They ensure that the joint conference is conducted in an efficient, professional and civil fashion in accordance with the Rules and any applicable practice notes.
They ensure that the experts address the issues identified by the parties, or arising from the conflict in their reports, and that no expert is pressured or overborne.
They act as a liaison between the experts and the parties if any issues arise that require clarification.
They supervise the preparation of a draft Joint Report which accurately reflects the opinions expressed by the experts during the conclave in an admissible form, and provide an opportunity for correction so that the experts can agree upon a final Joint Report.
They finalise the Joint Report and, upon agreement by all experts circulate it to the parties.
Facilitators range form experienced solicitors and junior counsel through to senior counsel, depending on the subject matter of the conclave and the proceedings.
1. It’s cheaper
The experts are usually paid hourly. Conclaves with facilitators are faster at every stage because they are organised and supervised. A draft report has to be prepared by someone, circulated by someone, coordinated by someone, experts chased at every stage by someone, and the final report prepared, circulated and distributed by someone, and that someone has to be paid for their time.
An experienced lawyer facilitator can do all of these things better and faster, and so cheaper, than if the tasks are shared among the experts.
The overall costs of a conclave with a facilitator are usually less than the overall costs without a facilitator where one or more of the experts have to be paid for the extra time they spend because there was no facilitator.
You also avoid issues about whether other parties should pay part of the additional costs of the expert who “volunteered” to co-ordinate the process and prepare the draft report.
2. You protect your client’s interests
Your client’s case may be won or lost on the expert evidence. It’s effectively a pre-trial determination of expert issues. At trial you and your client are entitled to be present during the proceedings. Whereas, the usual Court practice excludes parties and their legal representatives from attending.
The experts sit in room by themselves and with no legal knowledge or guidance decide the outcome of the expert dispute.
Often that means they are in effect deciding your case.
Parties would never let the experts go to Court and give evidence without having counsel present, yet they regularly let the experts give evidence among themselves and decide the case in the absence of the parties.
Given the history of conclaves without experts to date it is surprising that any party agrees to a conclave without a facilitator.
3. You get a more useful report
A facilitated report will address the relevant issues in an admissible fashion. Not something that always happens with joint reports prepared by the experts.
4. You avoid the major problems that only occur when there is no facilitator
Some of the things that have gone wrong include experts who have left Joint Conferences, or later repudiated signed Joint Reports, because:
- they felt “pressured” or “overborne” by the other expert, or because they were “outnumbered” by the other experts,
- the experts thought, or were told by another expert, that the obligation to “endeavour to reach agreement” meant they had to “horse trade” or concede until they had agreement, and the other expert wouldn’t give any ground,
- they got flustered and rushed and signed a Joint Report that did not accurately reflect their opinion in order to be (they understood) allowed to leave to pick up children from a closing day care centre.
- 5 medical specialists leave a day long joint conference. 3 weeks later when followed up for the Joint Report all 5 state they are waiting for someone to provide a Draft. The transcript writer has only taken notes when specifically requested (which was inconsistent). The conclave started from scratch with a facilitator 5 months later when they were all available again.
2 of 3 expert engineers insist on drafting the Joint Report. Neither 2 would agree to review the other experts draft. The 3rd expert said that neither draft was accurate and refused further involvement.
For some fields of expertise we have some sample sections of de-identified reports. Please contact our office if you are interested in a sample.
The overall cost of expert opinion depends on the services required. Some of the key factors that affect the cost of advice include:
- The need for a view or inspection of a location
- The quantity of documentary material to be reviewed
- Whether there are reports of other experts to be reviewed and commented on in detail
- Whether there is a need for conferences with the expert either in person or by telephone/Skype