This article is about conclaves, joint expert reports and concurrent evidence. It is drawn from my experience as an expert witness across various Australian jurisdictions as well as in arbitrations. It represents my views, which are not necessarily the views of Alvarez & Marsal.

Definitions

Whilst the term ‘joint expert report’ is reasonably self-explanatory, the below practices are not used in all jurisdictions and are relatively new, even in those where they are regularly used.

Conclave – The recent election of a new pope has seen an increase in the use of this word in the media. In the context of disputes, a conclave is a meeting between two or more expert witnesses. The discussions in the conclave are privileged and confidential, and, of particularly note, the lawyers for the parties are not allowed to be in the conclave or communicate with the individual experts during the conclave process (sometimes explained as the experts working ‘without adult supervision’). The output from the conclave is a joint expert report.

Concurrent evidence – This is where two or more expert witnesses are sworn in and give evidence at the same time.

Hot tub/hot tubbing – A colloquial term for concurrent evidence.

Why the new approach?

Why change the traditional approach to expert evidence? Over the years there have been a number of criticisms of expert evidence,[1] including comments by experts themselves that they felt the process was not achieving the better education of trier(s) of fact. Judges and arbitrators around the world have been trying different approaches to the instruction and examination of experts.[2]

Concurrent evidence (and the arguably necessary precursor to that stage, the expert conclave and joint expert report) has its origins in the Australian Competition Tribunal in the 1970s. Since that time it has been refined and finessed in most Australian jurisdictions to the extent that it is now discussed and encouraged in various practice notes, practice directions and similar documents for most Australian jurisdictions.[3] The practice has been tried and adopted (to a greater or lesser extent) in other Commonwealth jurisdictions.[4] Arbitrators, with a high degree of party autonomy and procedural flexibility, have been at the forefront of the use of these procedures outside Australia, so much so that the concept has been incorporated into the CIArb Guidelines on Witness Conferencing in International Arbitration.[5]

Benefits of joint reports

Joint expert reports are often amongst the most useful documents in a dispute:

“The joint expert report should be the primary document the Court refers to when considering the experts’ evidence at hearing.”[6]

The joint report, which will have been crafted by all the experts, should set out what the experts respective opinions are regarding each question put to them, the areas on which they agree, the areas on which they disagree and why they disagree on each such area.

The aim is to remove the intellectual ‘table tennis’ where one expert produces a report, the other side’s expert critiques that report and potentially provides alternative opinion, and then the first expert comments on the second report, and so on. I have been involved in situations where the number of reports, reply reports and response reports has gone into double digits.

“The combined efforts of [the experts] have not been wasted… However, I did not need to have all their reports … put into evidence.”[7]

The joint report may include a table setting out, for each issue on which the experts disagree, columns for the experts’ respective opinions, supporting logic and supporting instructions/documents. This often becomes the agenda for cross examination of the experts and discussions between the experts.

The conclave/joint report can be an excellent solution to deal with minor calculation errors which traditionally may have been used to throw doubt on an expert’s capabilities, but which rarely had any real impact on the key issues in the matter.

Issues with conclaves/joint reports

Question(s)

• As with the expert report itself, it is important that the experts are asked the right question(s) going into the conclave.

Facilitator?

• A traditional conclave without a facilitator is something that can lead to the expert(s) with the most forceful personality dominating the process. Even with ‘professional’ experts, a good facilitator can ensure the process is efficient, balanced and leads to a clear and concise joint report. The Supreme Court of Victoria states:

“Expert evidence often deals with complex technical matters that can be difficult to absorb. As a result, any joint expert process may be required to be facilitated by an appropriately qualified legal person.”[8]

Report writing

• In times gone by there were differing perspectives on whether it was beneficial for one side’s expert to ‘hold the pen’ when it came to drafting the joint report, but increasing joint reports are being drafted ‘real time’ in SharePoint or a similar environment, which can greatly improve the efficiency of the process.

Clarity

By narrowing the issues in dispute, or at the very least clarifying the reasons for differences of opinion between the experts, the conclave and then the joint report can bring much needed clarity (often facilitated by brevity). If one’s strategy is premised on bringing clarity this can be seen as a real advantage; however, if one’s strategy is based on obfuscation and/or trying to discredit an expert, then clarity of the reasons for differences of opinion may not be seen as a benefit.

It is important that the parties, their lawyers and, most importantly, the experts realise that a conclave is NOT a negotiation. The experts are there to provide the court/arbitrator(s) with a clear, succinct report that sets out their respective positions. It is important that the experts realise that it is not their role to advocate for their client. Experience has shown that the degree to which experts are partisan — sometimes obviously so — can vary greatly between jurisdictions and individuals.

Benefits of concurrent evidence

Concurrent evidence is, as with all procedural tools, not a panacea. It can be a very useful approach if the parties and the judge/arbitrator have clearly set out the process to be followed whilst evidence is adduced from the experts. Some of the benefits include:

• Tempers more extreme comments

One of the key benefits is said to be that experts are less likely to deliberately say something that is technically incorrect or potentially misleading. Under traditional cross-examination, the expert may provide an answer that counsel may not fully appreciate was perhaps ‘shaded’ in favour of that expert’s client’s case.

I know of experts making comments that were technically incorrect, but in a subtle, nuanced way that effectively advocated for their client, apparently safe in the knowledge that the ‘shading’ was unlikely to be picked up by counsel directly and where the other party’s expert was not scheduled to give evidence for several days, weeks or even months later. By that stage it would be difficult to correct the impact of the previous comments.

In concurrent evidence technically incorrect or nuanced answers can be the subject of an immediate response or question from another expert. My experience is that this tends to make experts more balanced and measured in their answers, which in turn can reduce the extent to which experts can act as partisan ‘hired guns.’

• Easier for judge/arbitrator to follow arguments

Clearly setting out the experts’ respective positions, often issue by issue, allows all involved, but particularly the trier of fact, to better understand the relative positions.

• Clarity

As with the comments regarding the conclave/joint report process, concurrent evidence can be extremely powerful in bringing clarity regarding the assumptions used by the experts and how those assumptions play into their answers. This can be very useful if a party’s legal strategy is to clarify, but that is not always the case.

Issues with concurrent evidence

• Structure of evidence

One of the challenges to concurrent evidence is that it is still in its relative infancy, and the mechanics of how the process will operate are still evolving. Often different judges and arbitrators have different views of how the process should be run.

In a traditional, common law environment, an expert will have examination in chief, cross examination and re-examination. Increasingly, at least in Australian jurisdictions but also in many arbitrations, the scope of the examination in chief is very limited and is typically limited to the experts identifying their report(s).

In concurrent evidence the examination may take issue by issue, rather than by one expert covering all issues followed by another expert. In arbitrations, the bulk of the questioning during concurrent evidence may come from the arbitral panel, with limited scope for traditional cross-examination. This may not be a problem, however issues of credit are difficult to deal with in concurrent evidence.

• Questioning the other expert(s)

One of the key potential benefits of concurrent evidence is that the expert can be directly questioned on their opinions and answers by one or more experts.

However, this can be a minefield for experts, who are not allowed to be advocates for their client but should be an advocate for their opinion — a difficult balancing act in writing reports, but even more difficult when there is a temptation to ask questions of the other expert in a manner that may echo cross-examination by counsel. A risk is that the expert sounds like counsel and comes to be seen by the judge/arbitrator as an advocate for the expert’s client. Once this happens it is almost impossible for the expert to be considered unbiased in their opinions.

As such, it is important that counsel and the expert have discussed ahead of concurrent evidence the areas in which counsel is comfortable cross-examining without assistance from the expert. I have also developed a strong questioning look, which usually results in the judge/arbitrator asking me if I have any comments or questions on something the other expert has said; this can raise the point without me sounding like I am cross-examining the other expert.

Loudest wins?

A criticism often laid regarding concurrent evidence is that the better debater and/or loudest, ‘strongest’ expert may win the day. Whilst there is no doubt concurrent evidence requires a different blend of skills for the expert compared with cross-examination, it still requires a strong technical basis for one’s opinions, real knowledge of the details and the ability to move from the general to the specific and vice versa. Whatever the platform, the strongest experts are educators who explain rather than bluster.

When does a conclave and concurrent evidence work well?

Experience would suggest there are several elements required to make conclaves, joint reports and concurrent evidence work well, by which I mean in a manner that helps the trier of fact better understand the opinions of the experts. These include:

• Sensible experts
• Same questions considered
• Appropriate physical environment
• Activist/engaged judge or arbitrator(s)

What next?

Over the years there have been changes in the preparation of expert reports and the provision of expert evidence, including the introduction and expansion of the use of conclaves, joint reports and concurrent evidence. So how will these processes evolve going forward?

• Same question(s)?

Criticism of expert evidence has often commented on experts for opposing parties being ‘ships in the night’ with apparently widely divergent opinions. However, such apparent differences are, in my experience, often caused by the experts being asked to either address significantly different questions or, at best, the same question(s) using widely different instructed assumptions and/or documents.

Experience has shown this issue can be addressed by the judge/arbitrator taking proactive control of the instruction of experts at an early stage, like the first case management conference or similar. At this stage, the proactive judge/arbitrator can ensure that experts are instructed with the same question(s) (or to the extent that parties want different questions, both sets of questions), and they have the same instructed assumptions and documents.

I have seen situations where the experts were asked to value the shares in an entity, but they were asked to undertake the value at different dates with different instructed assumptions regarding various allegedly oppressive transactions. Ideally, both experts should be asked to undertake valuations at the two different dates, whilst at the same time asking them to identify the impact of each of the alleged oppressive transactions. This allows the parties, and the judge/arbitrator, to understand whether differences in the experts’ opinions on value are caused by which date they are considering, rather than true underlying differences in opinion when valuing on the same date.

If each expert is answering different questions, then the extent they may agree if answering the same question should come out during a conclave. However the conclave is, traditionally at least, something that happens relatively late in the process (often during the hearing), by which stage the parties have incurred significant levels of cost — perhaps under the misapprehension that their experts had a true difference of opinion, rather than a difference of question.

Identifying the relative importance (or otherwise) of which question is to be answered can help focus counsel of the legal framework of their client’s case. This can, in turn, illuminate different risks that should be considered in any settlement offers/mediations; the sooner this issue is properly understood the better informed any such negotiations will be.

• Straight to the joint expert report?

As discussed earlier, a number of judges have said that the joint expert report can be a particularly useful document. The logical extension of this, at least in minds of some judges’/arbitrators’ minds, is to skip (at least initially) the individual expert reports and go straight to the joint expert report.

If counsel and clients are nervous about what will happen in a conclave after they have had an opportunity to read and understand the individual expert reports, then they are incrementally more nervous about the prospect of a conclave producing a joint expert report without the initial framework of individual reports. This nervousness is both understandable and, to some extent, warranted.

If the judge/arbitrator (and this seems to be something being proposed and pushed by arbitrators more than judges) do push for this, then it would seem to be something where I would insist on a supervisor/facilitator. This helps to reduce the risk of the loudest/most experienced/most confident expert driving an outcome that does not properly reflect the differences in opinions of the experts and the reasons for such differences.

A variation on this approach, successfully used, was where the experts did an initial conclave to discuss and agree their approach to an issue, in my case the verification approach for the verification of thousands of transactions recorded for a project. The arbitral panel asked the experts to agree a draft approach and then had a short concurrent evidence session during a relatively early case management hearing. The result was an agreed methodology, which allowed the respective experts to undertake the verification on the same basis. Counsel and the parties were more confident there would not be ‘ships in the night.’ In that dispute, involving costs in excess of USD1.5 billion, the experts had a further conclave, produced a joint report and then gave evidence for less than 30 minutes each. However, that may have also been a function — in whole or part — of it being a stop-clock hearing.

• Single experts?

Any discussion on the use of experts cannot ignore the potential for the use of single, court appointed experts and/or special referees. These are different ‘tools’ that can, in certain circumstances, be cost effective solutions. However, this issue deserves a separate article; suffice to say that they are not a panacea, and there are real challenges putting a quasi-inquisitorial process into an adversarial framework.

From my experience there is no doubt that conclaves, joint reports and concurrent evidence can be extremely useful in narrowing and clarifying the issues, making it easier for the trier of fact to understand the opinions of the different experts. As such, they make useful additions to the procedural ‘tool bag’ to help manage an efficient and effect process — if used appropriately. But it is also important to appreciate that the same tool is not appropriate in all circumstances, and tools are most effective when wielded by an experienced practitioner, whether that is the judge/arbitrator, counsel or the experts themselves.

The views and opinions expressed in this article are solely those of the author.

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