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Expert perspective into the use of concurrent evidence – Litigation, Mediation & Arbitration


Australia:

Expert perspective into the use of concurrent evidence


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KordaMentha recently undertook a survey into the use of
concurrent evidence in Australia, in conjunction with the
Australian Bar Association.

The support for concurrent evidence was robust, with over 85% of
participants agreeing or strongly agreeing that concurrent evidence
was a useful tool. The biggest concerns respondents raised were
with how the concurrent evidence process is executed, and whether
certain case-specific issues can be dealt with effectively as part
of the process.

In this article, we consider some of the key themes arising from
the survey results from an expert’s perspective including:

  1. Consistency of approach

  2. Earlier notice for experts

  3. Judicial involvement

  4. The role of conclaves.

A consistent approach?

The survey said…

  • Although participants noted the efficiency of the expert
    evidence process appears to be improving, a common observation was
    a lack of consistency in execution of the concurrent evidence phase
    of that process. While the majority of participants had experienced
    concurrent evidence structured on an ‘issue by issue’ basis
    (which we consider to be a key advantage of the approach),
    participants noted that it ‘depended on the judge’ and
    could be ‘haphazard’. Many participants expressed interest
    in a harmonised guide for superior courts to ensure
    consistency.

  • Judges were optimistic, with 50% indicating there had been much
    improvement in concurrent evidence in the last five years, compared
    to just 8% of experts.

  • One expert stated that ‘no two concurrent evidence
    sessions have been the same’
    and this was evident in the
    responses received. For example, over half of experts rarely or
    never were given a list of issues prior to trial, or asked
    questions of other experts at trial.

  • Some of the differences between experts and legal practitioners
    are perhaps understandable, as experts are typically not concerned
    with the range of matters that counsel, judges and lawyers said
    influenced their preferences for concurrent evidence, such as
    matters of credit, or expert personalities.

KordaMentha perspective

  • Given the support for concurrent evidence identified in our
    survey, one solution might be to reverse the onus,and make
    concurrent evidence a standard practice – ‘why not’
    rather than ‘why’.

  • We also consider it would be a positive step forward if there
    was one, harmonised approach to concurrent evidence. Whilst we
    recognise that there is unlikely to be a ‘one size fits
    all’ approach, mandating a more standardised approach,
    including the need for expert conclaves, with standard timing for
    decisions, and appropriate variations as necessary, would eliminate
    a many of the ad hoc approaches identified in the survey responses.
    At the very least, it should be discussed at the same time as the
    parties are discussing whether or not they will think they will be
    calling experts, and there should be a consistent set of issues to
    be decided.

  • Whilst individual cases may require ‘tweaks’ to such a
    process, having a consistent set of issues to consider, and a
    solution that works for the vast majority of cases would increase
    efficiencies and allow for cross-jurisdictional learnings for all
    involved. Perhaps this is unrealistic in the Australian system, but
    differences in guidance, practice notes and practices in the use of
    experts across jurisdictions already cause inefficiencies and
    inconsistencies in the form and content of expert reports with
    little, if any, benefit from these differences.

Earlier notice for experts

The survey said…

  • There was no consensus on when the decision to use concurrent
    evidence should be made, though lawyers and judges generally felt
    it should occur earlier than counsel and experts.

  • Over 40% of participants thought decisions on how to use
    concurrent evidence typically occurred during trial, but there was
    a general preference for this to occur earlier.

  • The majority of experts felt they have been given
    ‘adequate’ notice of concurrent evidence, however this is
    perhaps not surprising since the majority of experts said that
    either less than a week, or one to two weeks was
    ‘adequate’.

KordaMentha perspective

  • Many of the experts who responded focus on financial matters,
    mainly damages. This may explain why they are often given
    relatively little notice of whether concurrent evidence is going to
    be used, as other issues may come out during the trial which may
    impact that decision.

  • However, whilst damages experts appreciate that there may be
    changes to the assumptions or questions they need to consider
    during a trial, there is the sense that not enough focus is being
    put on how expert evidence is going to run. In particular, we
    suggest more focus on how best to narrow the issues at an earlier
    stage through the use of conclaves and joint reports, and how best
    to efficiently deal with the expert evidence in trial through
    concurrent evidence.

  • A week or two may be ‘adequate’ notice, although we
    suspect it is more that experts (and others) have become used to
    only being given that much notice. That does not mean the
    experience, particularly for the judge but also for all others
    involved, would not be enhanced by more notice and more clarity
    about the process at an earlier stage.

Judicial involvement required

The survey said…

  • Over 80% of participants had experienced judicial involvement
    in concurrent evidence in some form, and the large majority (78%)
    of all groups of participants wanted judges involved in asking
    questions during concurrent evidence.

  • The strong preference was for the evidence to be led by
    questions from counsel, followed by the judge. Perhaps not
    surprisingly, the main group who wanted counsel to lead concurrent
    evidence without judicial involvement were counsel themselves.

KordaMentha perspective

  • Our best experiences of concurrent evidence have been when
    there has been genuine discussion between the experts and the
    judge, therefore we agree with the findings of the survey in
    wanting judicial involvement.

  • From our expert’s perspective, being asked independent,
    fact finding questions is the best way for the judge to see real
    differences between the experts.

  • All groups of respondents (counsel, judges, lawyers and
    experts) preferred counsel-led examination in concurrent evidence
    with judicial involvement. In our experience, this is consistent
    with the ability for skilled counsel to prepare and execute a
    concise examination of experts that gets to the heart of the key
    issues. However, it is important that the judge is allowed
    (encouraged) to actively participate in the process; only the judge
    fully comprehends the aspects of the experts’ evidence she or
    he considers relevant, and those aspects on which the judge
    requires further clarification.

Conclaves are critical

The survey said…

  • Although none of our questions focused on the joint expert
    process, several respondents identified that the effectiveness of
    concurrent evidence depended on that process being properly
    conducted (although one respondent felt that conclaves ‘are
    expensive, a waste of
    time, or unfair‘).

  • Some of the issues raised regarding conclaves included the
    inconsistency in their adoption, the lateness in which they were
    organised and whether questions should be given to experts to
    consider. Many of the comments suggested more clarity in practice
    notes is required.

KordaMentha perspective

  • Our experience is that the process of an expert conclave and
    subsequent joint report helps to bring structure and clarity to the
    real differences between the experts. It therefore provides solid
    foundations which, we would suggest, are generally essential to
    successful(i.e. informative for the judge) concurrent evidence. As
    discussed above, we propose the expert conclave is made part of a
    standardised approach.

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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