As we all know, the Court’s requirement for joint expert reports has become a routine part of litigation. When I was in private practice, the expert conclave process was a bit of a nightmare, usually resulting in a substandard joint report. The experts were often unenthusiastic about participating and, left to their own devices, they regularly fell short of adequately addressing the questions before them. This resulted in reports that were not particularly useful, were incurred at substantial expense and led to prolonged timelines.
Thankfully, the past few years have seen significant improvements in the process, largely due to the increasing preference among parties to engage facilitators. Facilitators help to guide the experts, ensuring that joint reports effectively address the posed questions and are promptly completed. I’ve written before about the impact a skilled facilitator can have on the process (see my blog dated 17 April 2023), but there are also actions the parties can take to improve the outcome. Here are some do’s and don’ts to help ensure that the conclave process is efficient, cost-effective and, most importantly, worthwhile.
Planning – DO plan ahead and DON’T send documents the night before.
While conclaves can be costly, waiting until the last minute to organise them can undermine the full potential of the process. Planning in advance is crucial to getting the best out of the experts and producing high-quality joint reports.
As a facilitator, I have seen time and time again experts (and the facilitator) provided with the documents, agreed assumptions and questions the night before the conclave. In most cases, we’re not talking about a handful of documents – I’ve seen hundreds and hundreds of pages sent through less than 24 hours before the meeting. This practice poses several challenges:
- Insufficient time for review: There is no way that a busy expert has the time to read, let alone meaningfully digest and consider, the material in such a short timeframe. This means they are underprepared for the discussion; the conclave itself takes longer and is ironically more costly as experts have to continually reference the documents, potentially missing critical information.
- Stress and under-preparedness: Last-minute planning really, really annoys the experts! They feel pressured, stressed and essentially put on the spot when asked to discuss questions they have not had time to consider. I regularly witness their stress, anger at the instructing solicitors, and unwillingness to engage in meaningful discussions because they have not reviewed the material. They often start the conclave defensively simply because they are unprepared, which can hinder the discussions.
- Cost efficiency: A poorly written joint report is essentially a waste of money. A joint report that effectively addresses the questions and succeeds in narrowing the issues in dispute will undoubtedly be more cost-efficient for all parties. The joint report may contain opinions that will affect a party’s position, resulting in an earlier resolution of the matter. Or, the contents of the report may lead to a party amending their pleadings, which will save time and money should the matter proceed to hearing. Ultimately, a well-written joint report can narrow the issues in dispute, resulting in cost savings arising out of a shorter hearing and lower experts’ fees.
Thoughtful preparation – DO allocate ample time for preparation and DON’T rush question formulation.
Effective preparation is key for optimising the conclave process and producing useful joint reports. I find that parties often defer conclaves until the last possible moment, whether to explore settlement possibilities or manage expenses. Suddenly they find the court-ordered date for the joint report upon them, which then leads to hastily drafted agreed assumptions and questions for the experts. This again can result in sub-standard joint reports. It’s also important to understand that poorly framed questions annoy experts. It is helpful to consider the following when drafting questions for the experts:
- Relevance : The questions should be directly relevant to the issues in dispute and focus on the areas where the experts’ opinions differ.
- Clarity: The questions should be clear and concise so that the experts can easily understand them and provide informed answers.
- Specificity: The questions should be specific and targeted, rather than broad or open-ended, so that the experts can provide focused answers addressing the issue in dispute.
- Admissibility: The questions should be designed to elicit admissible evidence in court.
- Neutrality : The questions should be neutral and not favour a particular party or outcome.
In my experience, experts get most frustrated with questions asking them to regurgitate information already in their previous reports. This frequently occurs in quantum conclaves where experts might be asked to “Outline the plaintiff’s treatment to date” or “What is the history provided by the plaintiff?” or “Comment on the injuries and disabilities sustained by the plaintiff”. This information is readily available in the existing expert evidence and does not invite meaningful discussion between the experts.
These types of questions do not narrow the issues in dispute, rather, they just frustrate the experts who often respond to the question by saying “We refer to our previous reports”. Clearly, this is unhelpful.
Taking the time to draft thoughtful questions designed to narrow the issues in dispute will pay off in a significantly more useful joint report. The parties should work together to agree on appropriate questions that will help to clarify the issues in dispute and provide valuable evidence for the court to consider.
Prepare your expert – DO have a pre-conclave conversation with your expert and DON’T assume they are familiar with the process.
It is important to remember that not all experts have experience in the conclave process. I have facilitated conclaves where an expert is participating for the first time, and others where experts have not experienced conclaves where a facilitator has been retained.
It is really imperative to educate your expert about the process. Ensure they understand the purpose of the conclave and how it is likely to proceed, including the role of a stenographer and the facilitator if one is retained. Ensure they understand that they will need to allocate time to prepare and to review extensive documents before the conclave, and then time to prepare the joint report at its conclusion.
By taking these proactive measures, your expert will be more comfortable with the whole process and should be less stressed about participating.
There are, of course, other strategies to improve the conclave process; however, the above Do’s and Don’ts should go a long way to ensure that experts are well-prepared to participate in the conclave. If they are properly prepared in advance, they will be able to engage in more insightful discussions which will result in an improved, more valuable joint report.
If you would like to discuss how we can help you to better prepare for a conclave, please contact me on 0409 994368 or by email at rmulae@r3resolutions.com.au. To book a facilitated expert conclave, visit our R3 Resolutions website and complete the booking form.