Friday, 17 December 2021

By Owain Stone, Sally Davitt, Ben Mahler, Justin Shadey and Elizabeth Buchanan

Blog_211209_Header_Concurrent-Evidence-Survey_800x400.jpg

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.  

We are keen to hear your perspectives on this topic – please email us at [email protected]

See the full survey report here.