5 Top Tips for Lawyers – Joint expert reports

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This article was prepared by Anuja Ng.

What are Joint Expert Reports (JERs)?

A JER is the written product of a conference (directed by the Court) between expert witnesses in the same or similar fields on matters in issue in the proceedings. A JER should address questions specified by the Court and submitted by any party. A JER sets out the matters upon which the experts agree, matters of disagreement and concise reasons for any disagreement.[i]

Different courts have their own rules relating to the content and form of a JER. For example, a Supreme Court of NSW Practice Note states, among other things, that JERs should contain suggestions, where helpful, of other matters that could be submitted to the experts for their opinion. In a recent policy issued by the Land and Environment Court of NSW, the court requires that JERs avoid jargon, prefer sentences to dot points and not be a “mere copy and paste” of an individual expert report.[ii]

JERs are cost effective, relatively quick, narrow the contested issues, can reduce the need for experts to attend and give evidence in court and provide a strong indication of what expert evidence will be adduced in trial.[iii] As such, directions ordering JERs are becoming increasingly common when courts are confronted with the likelihood of conflicting expert views.  The following five tips may be of assistance to lawyers in proceedings in which a JER is directed.

  1. Confer with your expert(s) as early as possible

The court may direct a joint conference at any time,[iv] including quite early in a proceeding. If the court directs a conference before an expert has provided his or her report to the instructing lawyer, the Court may direct the experts on the issues to be dealt with in the JER and on the facts and assumptions on which the JER should be based.

Lawyers should ensure that sufficient discussions with experts have taken place on matters that are important to clarify as early as possible and prior to any conference. Note that the JER could be used in cross-examination if the expert, at trial, expresses a different opinion from one that he or she committed to in a JER.[v]

Experts should be furnished with relevant materials and materials required by the court with sufficient time to enable them to prepare for the conference and seek clarification from their instructing lawyer or the court on questions that may be put to them. In the Supreme Court of NSW, these materials should be provided at least 14 days prior to the conference.[vi]

  1. Discuss with the expert what role he or she may play at the conference

An expert’s conduct during the conference and in the course of preparing a JER must be in compliance with the Expert Witness Code of Conduct.[vii] This means that the expert must exercise independent and professional judgment and not act as an advocate for any party.

However, an expert may volunteer for certain roles relating to the conference process, such as the role of chairperson. [viii] It may be worthwhile discussing with your expert, prior to the conference, if this is a role that he or she wishes to volunteer for.

  1. Be aware of what you can discuss with an expert before he or she signs a JER

Lawyers should be aware of the rules of a court on the nature of the communications he or she may have with an expert prior to the signing of the report, particularly when the expert does not sign the JER immediately at the end of the conference.

For example, the Supreme Court and Land and Environment Court of NSW have both issued Practice Notes/Policies stating that lawyers must not give advice or guidance to an expert prior to the signing of the JER except as provided in those documents.

After the JER has been signed, lawyers and experts can discuss what transpired at the conference and the expert may provide the lawyer with a copy of the report. However, details of what occurred during the conference should not be referred to in a hearing unless all affected parties agree.

  1. Be aware of any rules of court relating to your conduct during a joint conference

Although in some cases the Court will direct that lawyers and clients not attend the joint conference, the Court may also make directions requiring lawyers and clients to attend or give the option to attend.[ix]

If in attendance, a lawyer will be able to respond to questions from experts about the legal process relating to the case, assist experts in identifying required and relevant documents, provide other requested material and correct any misunderstandings relating to the facts in the case or the conference process.

However, the rules of a court may regulate the nature or manner of the lawyer’s contribution during the conference. For example, in the Supreme Court of NSW, lawyers for all parties in attendance should respond together, rather than individually, when responding to the experts.

Obtain the court’s leave if adducing further expert evidence

A party needs the court’s leave to adduce additional expert evidence on issues already dealt with in a JER.[x] Leave may not be granted e.g., on the basis that additional evidence is not relevant; because a party has waited too long to obtain it; or a party has not given sufficient notice of his or her intention to rely on it.[xi]

Lawyers should consider as early as possible if need for additional expert evidence may arise and if so, obtain the court’s leave as soon as possible and prior to commissioning the additional report.

In Lucantonio v Kleinert [2009] NSWSC 929, while refusing to admit expert evidence obtained after a joint conference, Brereton J said:

“The court manages closely the use of expert evidence…the purpose of the course of management adopted would be entirely frustrated if the plaintiff were now permitted to call a further expert witness who had not been involved in the conclave and the preparation of the joint report.”

In that case, the expert in question was appropriately qualified and his evidence was relevant. However, notice of intention to rely on his evidence was given after the joint conference had taken place.

Primary expert reports prepared prior to the joint conference, where relevant (e.g., because they provide the court with an opportunity to evaluate why the experts may have come to diverse conclusions on some matters), are ordinarily admissible.[xii]

[i] Uniform Civil Procedure Rules 2005 (UCPR) r 31.24(1)(c) and r 31.26.

[ii] Land and Environment Court of NSW – JER Policy (commencing 12 June 2015).

[iii] Land and Environment Court of NSW – JER Policy.

[iv] UCPR r 31.24(1).

[v] Practice Note No. SC Gen 11.

[vi] UCPR r 31.24(1)(c) and r 31.26.

[vii] In Sch 7 of the UCPR.

[viii] Practice Note No. SC Gen 11.

[ix] UCPR r 31.24(2).

[x] UCPR r 31.26(5).

[xi] E.g., Platinum Investment Management Limited v Chief Commissioner of State Revenue [2009] NSWSC 988.

[xii] See Commissioner of Taxation v AusNet Transmission Group Pty Limited [2015] FCAFC 50 (at [84]-[85] per Kenny J).

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