Passing like ships in the night? Making sure your expert witnesses truly confer

Expert evidence can often have a decisive impact on litigation outcomes. Complex financial disputes almost inevitably require evidence from forensic accountants, actuaries or market analysts, while a contractor in a major building project dispute will rarely succeed in a claim for a lengthy extension of time without persuasive evidence from a delay expert.

Where the experts are each engaged separately by the parties, there is a real danger that their evidence may pass like ships in the night and not squarely engage with each other on common questions or issues. This can greatly complicate the Court's task in resolving the dispute (or the parties' task in settling the dispute).

To mitigate against this risk, Part 31 of the UCPR together with Practice Note SC Gen 11 provides a regime for the parties agreeing (or the Court deciding in the absence of agreement) a list of questions that the experts jointly confer and opine on. The NSW Supreme Court recently considered that regime in Atkinson v Coles Supermarkets Pty Ltd [2020] NSWSC 1063.

Lessons from Atkinson v Coles Supermarkets Pty Ltd [2020] NSWSC 1063

Mr Atkinson sued Coles for injuries he suffered while unloading a truck that had been loaded by Coles' staff. Unsurprisingly, many medical issues were raised in the case, including questions as to causation and what injuries and disabilities arose from the incident in question rather than a pre-existing injury or condition.

The parties were unable to agree on the list of questions for the medical experts to opine on. Justice Lonergan was called to resolve those differences. The defendant's questions, which were ultimately preferred, were framed in a neutral and non-leading manner:

"Q.1: Has the plaintiff ever suffered from an orthopaedic condition in his left shoulder?

Q.2: If so, what is your diagnosis of that orthopaedic condition in his left shoulder?

…

Q.5: Did any pre-existing medical condition contribute to any orthopaedic condition diagnosed in his left shoulder after 13 August 2015?”

The framing of those questions directed the experts to the real issues in dispute and were premised on an open-ended question as to whether the plaintiff "ever suffered" from a particular medical condition.

In contrast, the plaintiff's issues – which Justice Lonergan found to use an "entirely wrong-footed approach" – were framed in a "startlingly loaded fashion" that invited the experts to advise whether they "agreed" with selective comments made in prior expert reports. This approach, which raised argumentative propositions to be agreed with or shot down, she considered  promoted entrenchment of positions, not the objective clarification of issues for the Court's assistance.

Making your expert witness' testimony go smoothly

Atkinson provides a clear reminder of the need to frame questions to experts (whether in a joint process or not) in a manner that is neutral and non-leading. An expert's evidence will almost inevitably be given less weight if it is apparent that he/she is acting as a gun for hire who has been led to what is perceived by the Court to be the answer suggested by the party who commissioned them.

More specifically, and in relation to the expert conferral process discussed in Atkinson, parties should be aware of the considerable benefits of such a process. These include:

• the early identification and narrowing of the real issues in dispute, along with the consequential shortening of any trial and enhanced prospects of settlement;
• ensuring that the Court has the benefit of both experts' views on the same questions; and
• enhancing certainty regarding how the expert evidence will emerge at trial.

As a result, courts regularly make orders requiring such conferral (indeed, in the Commercial List in the NSW Supreme Court, that order is made as a matter of course unless the Court is "otherwise persuaded").

Parties should, however, also be aware of the potential dangers associated with this process, including that:

• a less renowned expert will defer to the views of their more senior or "qualified" counterpart;
• an aggressive or dominant expert will force their views on their more passive counterpart; and
• the conferral process and the nature of the agreed questions may act as a constraint on the areas on which the expert might otherwise wish to consider and give evidence about.

In particular, if an expert is to venture unled into a joint conference, it is important that everyone has confidence in the expert's ability to stand his/her ground where necessary. Some necessary matters to consider are the character and temperament of the expert witness, their prior experience as an expert witness, and their qualifications, as compared to the other proposed experts.

This difficult balancing act between the benefits of a conferral process and the associated dangers makes it necessary to receive appropriate strategic advice at an early stage, including regarding which experts to engage and how to ensure that suitably useful questions are selected for the experts to opine on.