Conclaves function as a way for courts to clarify the divergent and numerous expert opinions they need to address in more technical matters requiring two or more expert opinions. They arise when opposing sides in litigation or arbitration have sought expert reports and, for the purpose of effectively collating the positions of the experts, the court or tribunal orders the experts to congregate to compare, discuss, and finalise their opinions. In most cases, courts will request the experts to produce a joint report out of their discussion.
This is a different situation than what is colloquially called ‘hot tubbing’, where two or more experts who have produced reports are required to appear in court together in the witness box at the same time and be examined collectively about issues they have opined upon. Conclaves take place in absence of lawyers and outside the courtroom and experts are permitted to discuss openly with each other their reporting methods and reasoning.
The comparatively informal nature of conclaves can understandably leave lawyers and experts feeling adrift in their presentation of expert witness evidence. Below are some basic facts about and pointers for expert witness conclaves that we believe will assist in allaying expert and lawyer concerns and confusion about the process. The guide below aims to provide a clearer sense of the aims of courts when ordering conclaves, as well as some basic approaches that lawyers and experts can take to help properly facilitate those aims.
The legislative framework – What is a conclave?
The rules regarding expert conclaves can be found in the practice notes of the court and/or in legislation regarding expert evidence. In NSW, the relevant rules are found in Part 31, Division 2, Subdivision 2 of the Uniform Civil Procedure Rules 2005 (NSW).
- Rule 31.20(2)(h) gives courts the power to order experts to confer in relation to a specified issue, either before or after they have prepared their individual reports.
- Rule 31.24(1) gives courts the power to order experts to confer, either generally or regarding specific matters, and attempt to reach agreement over any matters in issue. They may then be ordered to prepare a joint report.
- The joint report must specify matters agreed and matters not agreed upon and the reasons for any disagreement (r 31.26).
- Rule 31.24(2) allows the experts to confer without legal representatives or a facilitator being present.
The result of these rules is that experts may sometimes be ordered to attend a conclave together, with nobody else present and with no other instructions than to confer and produce a joint report about areas of agreement and disagreement, and the reasons for any disagreements.
At the conclave
Care should be taken by the court to clarify with the experts that the aim of a conclave is not for them to reach agreement on all issues. Instead, the key purpose of a conclave is to allow experts to determine which issues they agree upon and which they do not agree upon and give reasons for the areas of disagreement. By doing so, a conclave provides the court with an efficient means to understand, organise, and approach the divergent and complex opinions of experts in their individual reports.
The conclave itself is held at a pre-determined location or remotely, where the experts can discuss the issues of fact and opinion in the matter and their reasons for any disagreement. If the need arises, experts seek brief advice or instructions from their lawyers prior to the conclave meeting.
Once the experts have decided on the areas of their evidence about which they agree and disagree, they can then either jointly create a report or decide upon one expert to write the joint report, which the others can then review and amend as necessary until all experts are satisfied that their opinions are properly represented and that the reasons given for areas of disagreement have been sufficiently explained.
The report can then be submitted to the court or tribunal. The parties are bound by the outcome of the conclave, unless it can be shown there are exceptional circumstances demonstrating they should not be.
Issues with uninstructed and unmediated conclaves
Conclaves are often conducted by a facilitator – a useful though expensive choice. When experts conduct the conclave on their own, issues regarding the conduct of experts may easily arise. These can include instances in which:
- The experts misconceive, or have been misinformed about, the purpose of the conclave and believe their objective is to reach agreement on all the issues in dispute. This may result in experts ‘bargaining’ away points in their opinions, which are otherwise perfectly valid and strong.
- One or more experts are overbearing and dominate discussion, leaving other expert/s feeling that their voice was not sufficiently heard or, worse, that they felt pressured into conceding an opinion they did not actually believe to be true. Opinions held by a minority of experts in a conclave are most susceptible to this kind of pressure.
- Where time becomes a factor, for example towards the end of the day/meeting, an expert feels pressured to resolve things in a rushed manner and ends up agreeing to a joint report that does not truly reflect their opinions.
Given the potential for such compromise and confusion during the conclaves where lawyers have not presented experts with specific instructions or questions, it is paramount that experts remember to do the following:
- Before the conclave, experts will benefit from having considered their respective individual expert opinions once more as well as the reasons and facts they relied upon in arriving at those opinions. Possessing a greater familiarity with and confidence in an opinion and the pathways taken to arrive at it can vastly improve the efficiency and clarity of discussion at the conclave.
- During the conclave, an expert should stand their ground regarding points which the expert can clearly support and for which the expert is able to provide clear and cogent reasoning, even when those points present a minority opinion on the facts. Experts are not required to come to an agreement on issues in a conclave. Courts will still consider the reasoning and cogency of expert opinions even where other experts vehemently disagree with them. If an expert opinion is logical and based on accurate facts and technical insight, then there is little reason to reject it in favour of another opinion.
- Experts should aim to leave the conclave understanding and knowing what the conclave agrees and disagrees on, as well as in what way and for what reason the opinions differ. An expert’s clarity regarding the points of disagreement not only speak to the strength of their understanding of the matter, but will also strengthen their standing in court cross-examination.
The value of conclaves
When conducted effectively and fairly, an expert witness conclave saves costs to parties. It can expedite the hearing process in complex matters by reducing the number of facts in dispute.
Conclaves also provide experts the opportunity to practice presenting and persuading others of their opinion. It can be, in effect, a practice run for examination in court, albeit with another expert who will be well versed in the field of expertise, unlike the judges and lawyers who will look to the experts for advice.
For lawyers, a conclave is an opportunity to ensure that their expert’s argument is strong and persuasive compared to other experts’. Despite the lack of formality involved in conclave reporting, lawyers might benefit from viewing the process as an effective test of the level of reasoning and integrity in their expert’s report.