11 November 2021

Concurrent Evidence Practices Survey



KordaMentha, an independent firm in Asia-Pacific, specializes in cybersecurity, financial crime, forensic, performance improvement, real estate, and restructuring services. With a diverse team of almost 400 specialists, they provide customised solutions to help clients grow, protect from financial loss, and recover value. Trusted since 2002, they deliver bold, impactful solutions for clients.
The survey indicated overwhelming support for the use of concurrent evidence as a method of examining expert witnesses.
Australia Litigation, Mediation & Arbitration
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The results.

The Concurrent Evidence Practices Survey provides insights into both experiences and expectations in relation to concurrent evidence from a cross-section of counsel, judges, experts and lawyers.

KordaMentha, in conjunction with the Australian Bar Association ('ABA'), surveyed a cross-section of stakeholders for their experiences and expectations when giving, taking or hearing expert evidence concurrently.

The participants were generally very experienced; over 60% had more than 15 years' experience in their current role and around 90% had experience in the superior courts. Nonetheless, over 60% of participants had less than 10 instances involving concurrent evidence, suggesting it still a relatively emerging method of examining expert witnesses.

"The survey indicated that there is overwhelming support for the use of concurrent evidence, however it is apparent there is no harmonised approach to dealing with concurrent evidence in Australia. Given the survey shows support for its use, and identified the advantages it can bring, there appears an opportunity to standardise its use through clearer guidelines. " commented Owain Stone, Partner in KordaMentha's Forensic team.

Some of the key findings from the survey were:

  • 64% of participants saw an increase in the frequency of concurrent evidence of over the last five years.
  • Over 85% of participants agreed that concurrent evidence was a useful tool, although many noted it was dependent on specific expert issues (including the personalities of the experts) and the effectiveness of the joint expert process.
  • 90% of judges preferred concurrent evidence to traditional cross examination, with 50% of judges indicating there had been "much improvement" in concurrent evidence in the last five years, compared to just 8% of experts.
  • Participants indicated a strong preference for judicial involvement in the process, mostly with questions first asked by counsel, followed by the judge.
  • The agreed advantages of concurrent evidence are the clarity brought by the issues-based approach, and the increased efficiency of the process.
  • A common observation was a lack of consistency in application/process, and the survey identified a desire for a harmonised guide for concurrent evidence in the superior courts.

We hope these results are useful to legal practitioners and experts alike, and that they spark discussion on how to improve concurrent evidence in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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