Giving expert conclaves the best chance of success.
Expert conclaves are a Court-ordered process where two (or more) experts meet to discuss their reports and to prepare a joint report.
In Australia this process usually happens without the presence (or, some might say, interference!) of instructing solicitors, counsel or clients, and is typically a series of discussions and exchanges of draft reports, rather than just one meeting.
It is increasingly common for judges to order this process to occur. It is generally seen to lead to better expert evidence in the witness box, particularly if that is going to be by way of concurrent evidence ('hot tub') since the process gives clarity to key issues. It can also allow the experts to get used to each other prior to the hot tub.
While there are some potential downsides (for example, a potential cost increase due to the time required from the experts to prepare their reports), the parties typically need to have a very good reason to resist the judge's request for a conclave. Of course, some parties may not wish issues to be clarified, but that reason is unlikely to be good enough!
Before entering into the conclave
The Supreme Court of New South Wales Practice Note No. SC Gen 11 "Joint Conferences of Expert Witnesses" sets out the requirements for experts when entering into the conclave. Whilst the Practice Note provides useful guidance, the requirements are not particularly prescriptive. For example, the Practice Note simply requires that the experts consult with the 'agreed protocol' if they need to contact their parties or the judge during the conclave. That means that good planning is vital before the conclave begins - ideally producing an agreement between the instructing solicitors.
We recommend that this includes:
- Details of when and where the conclave will occur, along with a timetable for completion of the joint expert report.
- A procedure for what communications protocols are to be followed if the experts (collectively) agree that there is a question that they need to take to the judge - or potentially to seek further information.
- A procedure for what to do if one or both of the experts believes the conclave has problems e.g. will not meet the required timetable or how to deal with a new issue or information. Ideally, this would result from the experts being able to agree on the need for use of this procedure. Since that may not be the case, there should also be clarity on what happens when the experts cannot agree.
- An agreement on whether the experts can have their assisting teams or colleagues with them in the room/on the screen.
- How the joint report will be managed (i.e. one expert to draft it, or all experts to contribute using SharePoint or similar technology).
Next, the expert needs to understand three things:
- What are the questions that the experts are being asked to respond to. Is it simply to set out all areas of agreement and disagreement, or are there more targeted issues or questions to consider? This should be determined before the conclave begins, ideally by agreement of the parties.
- What is the timeframe for the conclave - both the first meeting and the final joint report?
- Will there be a facilitator present at the expert meeting?
Many conclaves now include a facilitator - a neutral third party who is there to assist the process (often a Registrar). In our experience, there is growing support from some experts for using a facilitator, as this often results in less (obvious!) problematic personality differences between experts, and clearer written reports (with less jargon). An alternative is to consider a subject matter expert as a facilitator, but this is less common.
When does the process go wrong?
Despite the best planning and intentions, in our experience, there are a number of scenarios where expert conclaves may not lead to a good outcome, including:
- One expert refuses to provide explanation of their views to the other. This means each expert moves no closer to understanding the other's position, and hence their differences remain as before the start of the conclave.
- The experts try to negotiate, either on behalf of their clients or in relation to their opinions on differing matters. The experts need to understand that this is not a negotiation where the experts come to a middle ground that doesn't necessarily reflect either of their views. Rather, if the experts still disagree at the end of the conclave process, this the disagreement should be set out in their joint expert report, along with the reasons why they disagree.
- The experts do not share the same level or type of expertise. This may mean one expert does not maintain their own views, and in the meeting agrees to something which they may later regret.
While good planning cannot prevent such scenarios, making sure experts are aware of such risks prior to the conclave can increase the chances of a good outcome from a conclave.
After the conclave
Once the conclave is completed and the joint report filed, an expert typically should check in with their instructing solicitors to discuss the joint report. This is the ideal time to discuss the reason for any changes that may have resulted from the joint report process, and to ensure that counsel understands the key remaining differences between the experts. The conclave may have finished, but the process leading up to cross examination has just begun.
Overall, there are some real benefits in the expert conclave process. But there are some risks too. These should be planned for, and discussed with experts' instructing solicitors and counsel. Experts should also play a part in this planning, by having early and frank discussions with their instructing counsel as to what they need to know.
KordaMentha in conjunction with the Australian Bar Association previously undertook a survey into the use of concurrent evidence in Australia. To see the results of the survey click here.
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.