Some standard orders in Australian courts ask expert witnesses, who may each have already produced a report in a matter, to ‘confer’ with one another about their opinions and produce a joint report. These reports do not always require experts to participate in a conclave, though they often do. Regardless, the compilation of a joint expert report entails coordination not only between experts and their instructing solicitors but also between experts on opposing sides of the matter.
Below are three simple tips that should assist lawyers and experts in completing joint expert reports as efficiently as possible:
1. Preparation is the key
The advice passed around most frequently with respect to effective management of Joint Expert Reports is for lawyers to ensure that they have comprehensively prepared all materials and evidence well before experts attempt to compile a first draft of the report or well before the date of the conclave.
Since joint reports usually require experts to pass or share a document between them for completion, reports written with a clear idea of the full scope of material evidence available and issues in contention, will reduce the number of rounds of reviewing and amendment experts require to complete the report.
Conclave facilitators have also noted the frequency with which parties to a dispute fail to document or provide key pieces of evidence and clear instructions ahead of the conclave so that additional hours are required just for parties to clarify the full scope of the issues in a matter. Facilitators have emphasised that such time consuming disorganisation is something parties can easily avoid by preparing for the conclave more thoroughly beforehand.
2. Ensure the experts understand their role
Joint reporting works most efficiently when each expert understands the purpose of the joint report and the specific obligations involved in producing it. In some cases, a facilitator will be appointed to attend the conclave and assist the experts in the understanding of their roles and the task to be performed. However, this is not always the case and sometimes experts attend on their own.
Each expert should understand that their role in the conclave or compilation of the draft report is to clarify to the court what aspects of their opinions align and do not align with those of the other experts. Too often, experts work under the impression that they are required to come to an agreement on all issues of fact. This can be a costly misunderstanding to rectify, especially if experts have already spent hours debating about the misunderstanding in their communications or in the conclave.
Minimise administrative quibbles by deciding on a process for producing the final document. When is the report deadline? Is the report document on Google Drive or to be sent by email and completed by each expert in a succession? Allocating word processing roles and deadlines for report contributions and final drafts ensures that experts possess a common understanding of the process required to produce the report. Such clarity about the overall scheme of the drafting timeline will allow experts to complete the drafting process more efficiently.
If parties are required to produce a joint report without a conclave, experts may nonetheless find it helpful to organise a conference during which they verbally clarify their differences before putting pen to paper. When compiling joint reports during or following a conclave, a facilitator or expert should be appointed to transcribe opinions into a document for further amendment. For example, it may be more useful for one expert to write a first draft including their opinions and then forward this document to other experts for them to add their contribution. The report can then be passed back and forth for fine tuning until all the experts involved are satisfied.
3. Stick to a report structure
There are countless benefits to using a joint report template from the outset of the joint reporting process.
Firstly, experts who stick to a report structure are more likely to complete the joint report in a timely manner. A report template indicates clearly to experts and lawyers how their testimony, explanations and reasoning fit in the context of the opinions of the other expert(s), and can therefore provide a useful and reassuring guide to experts when they begin drafting their part of the report.
Secondly, stronger joint report structures communicate clearly to lawyers and the court in what ways and to what extent experts disagree on the issues in dispute. The document in these cases becomes a useful and expeditious reference for all involved in the proceedings and in that way reduces costs that parties would otherwise incur from often lengthy examinations of the joint report document.