Effective Strategies for Joint Expert Reports in Legal Cases
undefined
Getting a Better
Joint Expert Report
Kerry Hogan-Ross & Karen Stott
Overview
The purpose of expert witness joint conferences
Success factors
How to prepare – the questions are the thing
Consequences of briefing early v late
Why use a facilitator?
Why use a stenographer?
“Just, quick and cheap resolution” - ?
A joint expert report can make or break your case. If
you prepare for the conclave well you are likely to be
ahead of your opponent.
Purpose of
expert witness
conclaves
To assist the court
Narrow the issues in dispute
Promote settlement
Shorten the length of the trial
To promote the “Just, quick and
cheap resolution of proceedings”
Relevant Rules
Expert Witness Code of Conduct – (set out in
Schedule 7 of the UCPR);
Division 2 of Part 31 of the UCPR, (regarding
expert witnesses and a joint report); and
Practice Note No. SC Gen 11 (08/17/2005)
regarding Joint Conferences of Expert
Witnesses.
Practice Note Civil 1 District Court NSW
Practice Note SC EQ3, 55
Practice Note SC CL5, 37-40
Success
Factors
Choice of expert
Agreement on factual assumptions
Agreement on questions
Experts briefed sufficiently in advance with the same
brief
Questions are researched and concise / relevant
Time allocated for the conclave is realistic
Conclave date sufficiently in advance of report deadline
Experts attend in person
Experts are sufficiently prepared
Experts adopt a constructive and collegiate approach
Use of a facilitator!
Special
Considerations
For Plaintiff
Lawyers
Onus on the Plaintiff to prove the case
Conclaves are inevitable in a matter
Mediation before Conclave may not be possible
BEFORE briefing an expert:
Comprehensive discovery of
contemporaneous records
Comprehensive witness statement – which
correlates with factual dates
Ensure any factual assumptions required
are rock solid
Choice of
Expert
Specialist expertise:
Melchior & Ors v Sydney Adventist Hospital
Ltd & Ano
r
[2008] NSWSC 1282
Expert gone rogue:
Thimmava v Lancashire NHS Foundation
Trust
-
30 January 2020, Manchester County
Court
Agreement on
Factual
Assumptions
and/or
Questions
Good Preparation and communication – remember
“just, quick and cheap” resolution
Duty of parties to attempt to agree
Goldsmith by her Tutor NSW Trustee & Guardian v Bisset
NSWSC 2014, per Garling J
Where necessary to disagree on assumptions:
Consider having 1 set but highlighting the alternate
assumptions throughout
Easier for experts to identify and address
Makes for a more cohesive joint report
Briefing the
Experts
Experts briefed sufficiently in advance
Experts are given the same brief
Experts attend in person if practicable
Experts are sufficiently prepared
The Questions
are Everything!
The questions are as important as your initial brief to
your expert.
Questions should:
-
Go to the true issues in the case
-
Be researched properly first – it's ok to consult with
your expert!
-
Use correct and consistent terminology
-
Be clear and unambiguous
-
Not be repetitive
-
Not annoy the experts
Also: Consider whether the goal is “Yes/No” answers or
detailed information
The Questions
are Everything!
Questions should be:
Researched properly first – consult with your expert!
Use correct terminology
Case study re alleged failure to diagnose rectal cancer
Questions referred to “
cancerous growth”, “tumour”, “pre-
malignant polyp” - interchangeably.
Example:
Do you consider the plaintiff presented with any cancerous
growth or pre-malignant polyp?
Could the experts provide a yes / no answer?
Example 2: a broad question producing an unexpected result:
Would earlier diagnosis and treatment have ensured the patient’s
survival?
The Questions
are Everything!
An example of a single question actually being more
like 12 questions
:
In respect of each of the above consultations
should a reasonable and competent (specialist
doctor) in the position of the first defendant have
arranged for further follow-up? Was the diagnosis
by the first defendant
adequate? Ought the first
defendant have considered a differential diagnosis
including cancer?
there were 4 consultations in issue, spanning over 2
years
there were 13 questions put to the experts in full – (like
this)
are yes/no answers expected here? Or detailed
reasoning?
Timing
Time allocated for the conclave should be realistic
5 pages of assumptions, and multiple assumptions,
with 20 questions that have multiple components to
each one – will take longer than a 2-3 hour conference.
Conclave date sufficiently in advance of report deadline
What is the availability of the experts available
afterwards to review, amend and sign the report?
Consequences
of Briefing
On Time v Late
Your expert’s opinion should not come as
a surprise!
Experts are prepared and not annoyed
Greater likelihood that report can be
completed immediately
Minimal need to change report
afterwards due to experts wanting to add
to or change their comments
It is ideal if
Experts are
co-operative
and collegiate
but….
True Stories
Look after your expert and your expert
will look after you
How a Facilitator can help
What is the
Role of a
Facilitator?
In a neutral and non-biased way, to facilitate an
environment whereby the experts produce, in a
timely and cost-effective manner, a joint report
that assists the court.
That is, a report that complies with the Practice
Note and the court’s orders and is cogent, well
presented, avoids repetition and answers the
questions.
Why have a
Facilitator?
To guide & support the experts in their duty
To manage power imbalances
To ensure the experts address the questions
To bring the joint expert report to completion
in a timely manner –
don’t under estimate how
difficult this can be!
Coffey v
Murrumbidgee
Local Health
District
[2017] NSWSC 1441
His Honour Campbell J ordered that a conclave
of 3 Obstetric liability experts be re-convened
because:
The joint report was “not sensible or logical”
It was submitted with a summary cover sheet
by SC Facilitator with the transcript of the
conclave attached – “contrary to the Rules and
to proper practice”
One of the liability experts had not been able to
attend the original conclave
Attributes of a
good
Facilitator
Legal expertise
Expertise as a mediator / facilitator - able
to manage strong personalities,
encourage experts to adopt a
constructive and collegiate approach
Hands-on approach – to herd cats and
bring report to completion
Well-organised and good administrative
skills
“Just, Quick
and Cheap”
?
Costs of late-adjourned conclaves
Matters with multiple conclaves required
District Court matters where quantum is
relatively modest
Conclaves before or after ISC/Mediation?
Conclaves right before Trial
Different styles
of Conclaves
Experts meet or conference call on their own
and produce report.
Not recommended but
can be effective with experts very experienced
in providing medico-legal reports, joint reports
and giving evidence.
Experts meet and/or conference call with
facilitator with or without a stenographer
transcript amended and draft report produced
after the conclave.
Experts meet and/or conference call with
facilitator and stenographer
. Answers
inputted live and visible via lap tops or large
screen throughout the conclave, first or even
final draft available at end of conclave.
Key Messages:
PPPP!
If experts are poorly prepared or the questions are
poorly drafted you risk having an uncooperative,
disengaged, angry expert - they can go rogue!
A poorly prepared expert may have less ability to
counter an unequal power balance, or difficulty in
expressing a view.
A poorly prepared expert often leads to a delayed
report, or a poor quality report.
Poor preparation and putting an expert at a
disadvantage is not just bad for the client, it is also a
reputational issue for the solicitors.
Thank You
There's no question the objectives of a joint expert report are sound, but too often the outcome can be bad and that is often because the processes are bad.
The problem for practitioners is that because you aren't present at conclaves, you don't get to see why the process has failed.
As facilitators we have observed the processes leading up to the conclave, the conclave itself and what happens afterwards.
One thing we can say from experience, is that a proportion of our profession do not take the process seriously. So if you have prepared well for the conclave, and your expert is well briefed and prepared, you may already be ahead of your opponent.
The joint expert report can make or break your case. So take it seriously, prepare well and early.
Joint expert reports play a crucial role in legal cases by narrowing down disputed issues, promoting settlement, and expediting trials. This article explores success factors, preparation tips, and the importance of following expert witness codes of conduct to ensure a constructive and efficient joint expert conference.
Download Presentation
Please find below an Image/Link to download the presentation.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.
E N D
Presentation Transcript
Getting a Better Joint Expert Report Kerry Hogan-Ross & Karen Stott
The purpose of expert witness joint conferences Success factors How to prepare the questions are the thing Consequences of briefing early v late Why use a facilitator? Why use a stenographer? Just, quick and cheap resolution -? Overview A joint expert report can make or break your case. If you prepare for the conclave well you are likely to be ahead of your opponent.
To assist the court Narrow the issues in dispute Promote settlement Shorten the length of the trial To promote the Just, quick and cheap resolution of proceedings Purpose of expert witness conclaves
Expert Witness Code of Conduct (set out in Schedule 7 of the UCPR); Division 2 of Part 31 of the UCPR, (regarding expert witnesses and a joint report); and Practice Note No. SC Gen 11 (08/17/2005) regarding Joint Conferences of Expert Witnesses. Practice Note Civil 1 District Court NSW Practice Note SC EQ3, 55 Practice Note SC CL5, 37-40 Relevant Rules
Choice of expert Agreement on factual assumptions Agreement on questions Experts briefed sufficiently in advance with the same brief Questions are researched and concise / relevant Time allocated for the conclave is realistic Conclave date sufficiently in advance of report deadline Experts attend in person Experts are sufficiently prepared Experts adopt a constructive and collegiate approach Use of a facilitator! Success Factors
Onus on the Plaintiff to prove the case Conclaves are inevitable in a matter Mediation before Conclave may not be possible BEFORE briefing an expert: Comprehensive discovery of contemporaneous records Comprehensive witness statement which correlates with factual dates Ensure any factual assumptions required are rock solid Special Considerations ForPlaintiff Lawyers
Specialist expertise: Melchior & Orsv Sydney Adventist Hospital Ltd & Anor [2008] NSWSC 1282 Expert gone rogue: Thimmavav Lancashire NHS Foundation Trust - 30 January 2020, Manchester County Court Choice of Expert
Good Preparation and communication remember just, quick and cheap resolution Duty of parties to attempt to agree Goldsmith by her Tutor NSW Trustee & Guardian v Bisset NSWSC 2014, per GarlingJ Agreement on Factual Assumptions and/or Questions Where necessary to disagree on assumptions: Consider having 1 set but highlighting the alternate assumptions throughout Easier for experts to identify and address Makes for a more cohesive joint report
Experts briefed sufficiently in advance Experts are given the same brief Briefing the Experts Experts attend in person if practicable Experts are sufficiently prepared
The questions are as important as your initial brief to your expert. Questions should: - Go to the true issues in the case - Be researched properly first it's ok to consult with your expert! - Use correct and consistent terminology - Be clear and unambiguous - Not be repetitive - Not annoy the experts The Questions are Everything! Also: Consider whether the goal is Yes/No answers or detailed information
Questions should be: Researched properly first consult with your expert! Use correct terminology Case study re alleged failure to diagnose rectal cancer Questions referred to cancerous growth , tumour , pre- malignant polyp -interchangeably. The Questions are Everything! Example: Do you consider the plaintiff presented with any cancerous growth or pre-malignant polyp? Could the experts provide a yes / no answer? Example 2: a broad question producing an unexpected result: Would earlier diagnosis and treatment have ensured the patient s survival?
An example of a single question actually being more like 12 questions: In respect of each of the above consultations should a reasonable and competent (specialist doctor) in the position of the first defendant have arranged for further follow-up? Was the diagnosis by the first defendant adequate? Ought the first defendant have considered a differential diagnosis including cancer? The Questions are Everything! there were 4 consultations in issue, spanning over 2 years there were 13 questions put to the experts in full (like this) are yes/no answers expected here? Or detailed reasoning?
Time allocated for the conclave should be realistic 5 pages of assumptions, and multiple assumptions, with 20 questions that have multiple components to each one will take longer than a 2-3 hour conference. Timing Conclave date sufficiently in advance of report deadline What is the availability of the experts available afterwards to review, amend and sign the report?
Your experts opinion should not come as a surprise! Experts are prepared and not annoyed Greater likelihood that report can be completed immediately Minimal need to change report afterwards due to experts wanting to add to or change their comments Consequences of Briefing On Time v Late
True Stories It is ideal if Experts are co-operative and collegiate but . Look after your expert and your expert will look after you How a Facilitator can help
In a neutral and non-biased way, to facilitate an environment whereby the experts produce, in a timely and cost-effective manner, a joint report that assists the court. What is the Role of a Facilitator? That is, a report that complies with the Practice Note and the court s orders and is cogent, well presented, avoids repetition and answers the questions.
To guide & support the experts in their duty To manage power imbalances Why have a Facilitator? To ensure the experts address the questions To bring the joint expert report to completion in a timely manner don t under estimate how difficult this can be!
His HonourCampbell J ordered that a conclave of 3 Obstetric liability experts be re-convened because: Coffey v Murrumbidgee Local Health District [2017] NSWSC 1441 The joint report was not sensible or logical It was submitted with a summary cover sheet by SC Facilitator with the transcript of the conclave attached contrary to the Rules and to proper practice One of the liability experts had not been able to attend the original conclave
Legal expertise Expertise as a mediator / facilitator -able to manage strong personalities, encourage experts to adopt a constructive and collegiate approach Attributes of a good Facilitator Hands-on approach to herd cats and bring report to completion Well-organised and good administrative skills
Costs of late-adjourned conclaves Matters with multiple conclaves required Just, Quick and Cheap ? District Court matters where quantum is relatively modest Conclaves before or after ISC/Mediation? Conclaves right before Trial
Experts meet or conference call on their own and produce report. Not recommended but can be effective with experts very experienced in providing medico-legal reports, joint reports and giving evidence. Experts meet and/or conference call with facilitator with or without a stenographer transcript amended and draft report produced after the conclave. Experts meet and/or conference call with facilitator and stenographer. Answers inputted live and visible via lap tops or large screen throughout the conclave, first or even final draft available at end of conclave. Different styles of Conclaves
If experts are poorly prepared or the questions are poorly drafted you risk having an uncooperative, disengaged, angry expert - they can go rogue! A poorly prepared expert may have less ability to counter an unequal power balance, or difficulty in expressing a view. Key Messages: PPPP! A poorly prepared expert often leads to a delayed report, or a poor quality report. Poor preparation and putting an expert at a disadvantage is not just bad for the client, it is also a reputational issue for the solicitors. Thank You
