Getting a Better Joint Expert Report - NSW
Karen Stott
Principal ADR & Mediation Services | Lawyer | 20+ years Litigation Experience | Accredited Mediator NMAS
I am pleased to be a guest speaker with Kerry Hogan-Ross on this topic, from our respective viewpoints as Facilitators. We are part of the upcoming Legalwise seminars in Sydney CBD: “Current Concerns in Medical Negligence” on 28 February and “How to Skills for Litigators” on Thursday 5 March 2020. See the links to the seminars below.
Here is a Q&A regarding some of the issues that we will cover.
Current Concerns in Medical Negligence - What’s a common mistake you see legal practitioners make when preparing a medical negligence claim?
Answering this question with respect to plaintiff lawyers, whose role it is to particularise the claim and seek supportive expert evidence which the defence then responds to, the most common and also most costly mistake, is the failure to prepare the case comprehensively from the outset.
This includes taking comprehensive client instructions, gathering all of the relevant medical records, preparing a chronology of material events, cross checking the facts that have been ascertained from the clinical records with the client’s instructions and finalising the client’s instructions regarding any factual assumptions that need to be made.
This is a lot of work and it is very important that all this occurs before an expert witness is briefed, so that the expert is able to provide an opinion that is robust and reliable, based on the comprehensive background records. To the extent that an expert opinion is reliant on any factual assumptions put, it is crucial that such assumptions have been vetted so that they can withstand the necessary scrutiny and objection that can be anticipated as the litigation unfolds.
‘How to’ Skills for Litigators - What is a joint expert report and when might a Court direct one to be prepared?
The purpose of joint conferences of expert witnesses is to narrow the issues in dispute between the parties. The joint conference, and the joint report produced from the conference, will focus on those narrowed issues, and generally speaking, experts will either agree or disagree with the reasons on those narrowed issues.
It is standard procedure for the Court to direct a joint conference of the same types of expert witnesses, before a matter is allocated a hearing date. The joint report/s arising from joint conferences often lead to settlement negotiations.
Joint conferences of expert witnesses also have the effect of shortening the length of a hearing. Take the example of 4 neurosurgical experts coming to give evidence in a hearing individually, 2 for the plaintiff and 2 for the defendant. In the absence of expert witness joint conferences, arranging the diaries of 4 senior and busy consultant neurosurgeons who divide their time between public and private patients in surgery and consultation, can often prove very difficult, as might getting them to the hearing individually. Further, the cross-examination of each of the surgeons, which was traditionally solely the domain of a barrister without any intervention from a judge, could take a great deal of time.
With expert witness joint conferences, all 4 neurosurgeons would be gathered together at once, usually for a limited amount of time, for example, a day, and, depending on the judge, cross-examination of the expert witnesses is usually inevitably, much shorter, as the judge will focus on the issues in dispute, because the judge will have read not only the joint reports produced from the joint conferences, but also the reports leading up to them.
What is the role of a facilitator?
The reason behind a facilitator in an expert witness joint conference is because a room full of experts can often use some guidance in a legal situation, when their expertise is other than legal. It is hard to imagine an expert witness joint conference that would not benefit from having a facilitator, as in most cases, it would be very difficult for the experts to work through the questions and come up with a joint report without a facilitator’s assistance.
A facilitator with legal expertise understands the relationship of the questions to the legal issues as well as the objective of having all of the experts address those questions in full. There is a chance that without such a facilitator, experts, as clever as they are, may not address all of the issues.
Facilitators know what the court wants them to achieve through the process of having a joint conference and the production of a joint report, something which is not always so obvious to an expert witness. A very simple yet important example is the assistance a facilitator can provide in explaining the standard of proof – eg “the balance of probabilities” and the difference between scientific certainty which is not required. This is often an important requirement, particularly when the conclave involves the experts to opine on the issue of “causation”.
What are a few things to keep in mind when considering using a facilitator?
Facilitators are also a means of providing support to, and showing respect for, the expert witnesses who have put aside their time and come together to meet to work through the relevant questions and come up with a joint report.
Further, there may be situations where experts without a facilitator, one of which experts is prepared to act as scribe, may prepare a draft report in advance, something which may not necessarily be desirable, as it allows one expert to, in a way, drive the conference.
While this may be very diligent on the part of the scribe expert on the one hand, on the other, it may lead to the creation of a power imbalance and not allow for all of the experts’ voices to be heard.
A facilitator would be instrumental in managing this power imbalance and enabling all of the experts to feel as though they have had a chance to be heard. This is particularly important in conferences where there is an expert with a powerful, overbearing personality, who, by reason of this, might often get the most “air time”, so to speak; though the reasoning and expertise of another expert/s participating in the process may be better considered but expressed with brevity, thereby risking the appearance (on paper), of being less persuasive.
Anecdotally, a worst-case scenario of alleged power imbalance between experts where there was no facilitator at an expert conclave, resulted in one of the experts claiming afterwards that they were bullied during the course of the meeting. Application was then made to the Court that the conclave be re-convened, with a facilitator.
What are your top 3 tips for legal practitioners when it comes to joint expert reports?
- The questions are everything! Give thorough consideration to them and involve your experts in the preparation process.
- Get the briefs, questions and assumptions to the facilitator and to your experts in plenty of time - the Supreme Court Practice Note stipulates 14 days.
- Don’t under-estimate the amount of time it can take for the joint expert report to be produced.
The Questions:
?It is sensible for parties to confer with their expert witness from the outset about the questions that should be put to them, so that the risk of any unexpected capitulations is minimized. Likewise: the importance of minimizing the risk of the experts volunteering any additional opinions not previously expressed, (eg outside the scope of what is pleaded) and which may compromise the claim. It is important to obtain the experts’ input on the particular wording of the question; eg the use of specific terminology, which can be extremely important, especially in medico-legal cases.
The Brief:
Brief the experts with plenty of time for them to review the documentation, questions and assumptions in advance of the conclave. I have observed that when experts are not briefed sufficiently in advance, they are more likely to add further information and opinion evidence to the draft joint report after the conclave, or to change their opinions altogether; ie after they have had sufficient time to properly consider the issues and their respective conclusive opinions. This then means that the changes to the draft joint report need to be considered by the rest of the experts, with an opportunity to respond. Additional material and changed opinions after the joint conclave makes the process of producing a joint report cumbersome and more expensive and can be rather counter-productive to the purpose of the joint conclave itself. The parties won’t necessarily see this because what happens before the joint report is produced, is confidential. For a robust, reliable and cost-effective joint report: it is imperative that the experts be briefed well in advance.
Time:
Do not underestimate how long the expert witness joint conference, and finalisation of the report, may take, and to allow a sufficient amount of time for both of these, taking into account the date of the hearing. There are horror stories aplenty about joint reports that have not been finalized before the hearing date – which in turn delays the hearing.
Join Kerry Hogan-Ross and I at either of these seminars hosted by Legalwise:
Sydney CBD: “Current Concerns in Medical Negligence” on 28 February
and “How to Skills for Litigators” on Thursday 5 March 2020: