find the latest legal job
Inhouse Legal Counsel -18 months-4 PAE - Real Estate Investment Company
Category: Banking and Finance Law | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· In brand new prestigious CBD offices
View details
Senior Associate - Competition, Policy & Regulatory
Category: Other | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Work with a well regarded Partner · Sydney CBD
View details
Commercial Litigation Senior Associate
Category: Litigation and Dispute Resolution | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Lawyers Weekly Australia Partner of the Year 2016, Insolvency
View details
MULTIPLEX Regional Legal Counsel (Vic) | 7 to 10 years + PQE
Category: Generalists - In House | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Career defining in-house role · Tier One international contractor
View details
Junior Lawyer - Personal Injury Law
Category: Personal Injury Law | Location: Parramatta & Western Suburbs Sydney NSW
· Highly specialized practice · Challenging role with great opportunities
View details
Why Expert Conclaves go so Wrong, so Badly and so Often

Why Expert Conclaves go so Wrong, so Badly and so Often

Promoted by

Only 10 years after the Rules and Practice Notes mandated Conclaves and Joint Reports in NSW the Courts are starting to impose them, and for the unprepared the results aren’t pretty.

The Courts have been concerned about the impartiality of expert witnesses since at least 1843.i

Those concerns eventually led to the introduction of Expert Witness Codes of Conduct ii in most jurisdictions (by the start of the 21st Century) as well as to Rules iii and Practice Notes iv for conclaves and joint reports.

Although introduced in 2005 in NSW, for a variety of reasons conclaves and joint reports have been relatively rare occurrences in many areas of practice and jurisdictions. But not anymore.

Parties are finding that the Courts are taking up these procedures with a will, and the indications are that this trend is likely to increase until they are the norm.

Many practitioners are (rightly) concerned with this trend given just how many conclaves and joint reports have gone so badly wrong.

The simple fact is that while the objectives are good, in most cases the processes around conclaves and joint reports are bad, which is why so many conclaves and joint reports go wrong so often.  By “wrong” we don’t mean that a particular party didn’t get the substantive outcome it hoped for, but that the process utterly failed to achieve the stated objectives of holding a conclave and obtaining a joint report.

One of the key features of this process is that practitioners are usually not present at conclaves and have no input into the preparation of the final joint report, and so do not know why the process has failed.

For that reason Expert Experts conducted in-depth qualitative interviews with a range of experienced expert witnesses about conclaves and joint reports. 

Their answers were illuminating, and point to some obvious flaws with current “standard” processes being adopted by many legal practitioners. The key findings were that most expert witnesses:

  1. Liked the idea of conclaves. They see real benefit in professional peers being able to discuss and resolve, or at least clarify and narrow, issues in the absence of pressure from clients and lawyers.
  2. Had participated in some successful conclaves, which produced joint reports that clarified and narrowed the issues in dispute in line with the objectives of the process.
  3. Had, however, participated in a larger number of “failed” conclaves. Problems included: disorganised conferences; over-bearing personalities; a lack of agreement as to what the issues or questions posed meant; disagreements as to what the obligation to seek to resolve issues meant (were they meant to “horse trade” concessions to “settle” the matter?); lack of basic administrative resources to prepare a joint report at the time; confusion over what to do when the conclave was clearly degenerating; difficulty co-ordinating the preparation of a joint report after the conclave was over; and numerous other issues. These issues had resulted in poorly drafted and confusing joint reports that did not assist any party or the Court.
  4. Thought that the main reason conclaves and joint reports went wrong was the failure to have in place a settled, structured, closely managed and supervised set of procedures to facilitate the conclave and joint report process.  The general guidance to legal practitioners and experts contained in current Rules and Practice Notes was not considered sufficient.  Further, each firm of solicitors apparently has a unique view of the “usual practice” that should be followed.
  5. Thought that the factor most likely to contribute to a conclave and joint report being successful was the presence of an independent experienced facilitator / chairperson, either an independent legal practitioner or expert with experience in the process, who facilitated and coordinated the entire process from start to finish, including dealing with all administrative issues, impartially assisting the experts to liaise with the parties and legal representatives to clarify the issues and questions to be addressed, and assisting the experts in preparing a useful joint report reflecting all experts views in an appropriate form to assist the Court and parties.

In summary, if you’re are relying on a “process” premised on a group of often sole practitioner experts with varying degrees of experience with conclaves, and busy professional schedules, coordinating among themselves to produce a joint report that adequately addresses all of the relevant issues in a useful and potentially admissible form, without any one person being ultimately responsible for delivering the outcome … good luck. You’ll need it.

If you want a realistic chance of a sensible outcome that achieves the objectives of the conclave and joint report process you need to have an actual “process”. The best way to do that appears to be by appointing an independent facilitator to manage the process in the same way that legal practitioners are case-managed by Registrars and Judges, with the facilitator also acting as the central coordinating point between the parties, the experts and the Court.

There’s a cost to having a facilitator, but discussions with legal practitioners who have had conclaves go wrong suggest that it’s nominal compared with the costs of trying to untangle and deal with the consequences of a conclave and joint report gone wrong.

 

Notes: 

This article is a summary of some parts of a Joint Paper entitled “Expert Witness Conclaves Explained” prepared by Eugene Romaniuk S.C. and Bruce G. Smith, Barristers, of Jack Shand Chambers.

Mr Romaniuk S.C. http://www.jackshand.com.au/barristers/senior-counsel/eugene-romaniuk-sc/

Mr Smith http://www.jackshand.com.au/barristers/counsel/bruce-smith/

That Joint Paper was in turn based in part on proprietary research conducted by Bruce Smith in his capacity as a Director of Expert Experts Pty Ltd, on informal discussions with various Legal Practitioners, as well as on a review of Authorities on Conclaves and Joint Reports. 

 

Links:

UCPR 2005 (NSW)

Part 31.24  http://www5.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s31.24.html

Part 31.25  http://www5.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s31.25.html

Part 31.26  http://www5.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s31.26.html   

Supreme Court Practice Notes

Practice Note No. SC Gen 11 - Joint Conferences of Expert Witnesses - 17 August 2005

http://www.lawlink.nsw.gov.au/practice_notes/nswsc_pc.nsf/a15f50afb1aa22a9ca2570ed000a2b08/991e2f2f3bcd8289ca2572ed000cec4b?OpenDocument

Practice Note No. SC CL 5 - Supreme Court Common Law Division – General Case Management List - 29 January 2007

http://www.lawlink.nsw.gov.au/practice_notes/nswsc_pc.nsf/a15f50afb1aa22a9ca2570ed000a2b08/4cd3129c77a5419cca2572ed000ceca8?OpenDocument

Selected interesting cases on Conclaves and Joint Reports

Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304 (Hall J)

https://www.caselaw.nsw.gov.au/decision/54a63cda3004de94513dba94

X v Sydney Children’s Hospitals Specialty Network (No 5) [2011] NSWSC 1351 (Adamson J)

https://www.caselaw.nsw.gov.au/decision/54a6364c3004de94513d9088 

 

 

i See; The Tracy Peerage (1843) 10 Cl & F 154 at 191 8 ER 700 at 715, and more generally, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [56]–[58] (Heydon J).

ii Eg - Schedule 7 to Uniform Civil Procedure Rules 2005 (NSW), see also, The Ikarian Reefer (1993) 2 Lloyd's Law Reports p.68, and, Whitehouse v Jordan (1981) 1W.L.R. 246

iii See: Uniform Civil Procedure Rules 2005 (NSW): Part 31 “Evidence” Subdivision 2 “Expert witnesses generally” Rules 24 “Conference between expert witnesses”, 25 “Instructions to expert witnesses where conference ordered before report furnished “ and 26 “Joint report arising from conference between expert witnesses”.

iv See: NSW Supreme Court Practice Note SC Gen 11 “Joint Conferences of Expert Witnesses” 17 August 2005; and; NSW Supreme Court Practice Note SC CL 5 “Common Law Division – General Case Management List” 29 January 2007 – see clause 36-40 which makes a Joint Report the default position in personal injury actions.

 

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Why Expert Conclaves go so Wrong, so Badly and so Often
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Animal law moots, advocacy, Melbourne University, Australia and New Zealand Intervarsity Moot on Animal Law
Sep 25 2017
Moot unleashes animal advocacy
Melbourne has played host to one of the largest animal law moots, with student participants put th...
Scales
Sep 25 2017
Transgender teens should not need legal approval for hormone treatment, court hears
A transgender 17-year-old known as Kelvin has appealed in the Family Court against the requirement o...
Appointed, Victorian Legal Services Commissioner
Sep 25 2017
NFP CEO appointed Victorian Legal Services Commissioner
The CEO of a Victorian not-for profit pro bono legal services provider has been named as the state...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...