Issues limit expert joint meetings' effectiveness
By PwC partners Campbell Jaski and Siobhan Hennessy and director Steve Lord
Joint meetings of experts (also known as conclaves or conferences of experts) can be valuable in litigation proceedings, but can also be ineffective and costly.
Joint meetings of experts and joint reports are intended to enable experts to meet and address issues not agreed between them, with the aim to:
• discuss the issues further
• clarify one another's positions, and
• where possible, reach agreement with their opinions.
The joint report process should focus expert evidence in the proceedings by narrowing the points of departure and clarifying to the court why experts hold different views.
For lawyers, there is always an element of the unknown about joint reports. That is because courts generally order that lawyers are not to be present at joint meetings and experts are not to contact their respective instructing lawyers during the process. That can cause unease for lawyers at a time that is often approaching the trial date.
Being involved in joint meetings of accounting and valuation experts over many years has given us an interesting insight into why the process can fail to deliver on its purpose. The five key reasons are:
The ‘not here, not now' expert
Experts can be unwilling to discuss issues at hand during joint meetings. The result is an extremely brief meeting, during which only procedural issues are discussed. That reduces the opportunity for experts to agree. It could arguably be in breach of the court order, assuming experts are ordered to meet and confer about areas of agreement and disagreement.
When both experts are willing to explore reasons for the other expert's differing opinion, it sometimes becomes apparent one expert has misinterpreted, or simply missed, information provided to them.
The ‘I've been instructed to assume' expert
Experts can hide behind their instructions. If the issue at hand comes down to an instructed assumption (including one within an expert's area of expertise), an expert can refuse to be drawn on the issue. Discussions about whether or not an expert's instructions are reasonable can also be shut down. That might even harm the client's position, as the only person providing an opinion on the reasonableness of the instructed assumption is the opposing expert.
The ‘paid by the word' expert
When court orders are made for experts to prepare a joint report, orders often require the report to be brief. That is appropriate because:
• the joint report should not just repeat each expert's opinions and
• experts are expensive, especially accountants and engineers.
If both experts are not on the same page and one drafts excessively, it can create an unbalanced joint report where it is hard to distinguish key issues from those less significant. It can also put pressure on the succinct expert to match their opponent's word count through fear of being seen to have fewer arguments on which to base their opinion.
The ‘smartest person in the room' expert
Experts' egos come into play, but can sometimes go too far. That results in an environment less conducive to reaching agreement on key, or any, issues in dispute. It may just be that no concessions are made in front of the other expert during the meeting but, given time and space, that expert can admit, through the process of writing the joint report, they have made an error or their opinion is flawed.
The ‘advocating' expert
It is common to encounter experts who are motivated to improve or protect their ultimate client's position. That is particularly apparent when obvious concessions are not made or when an expert attempts to ‘horse trade' on differences of opinion. That will not ultimately assist the client, as the court will likely perceive the expert's lack of independence and may assign little, if any, weight to their evidence.
Key lessons for effective joint meetings of experts
• A meaningful discussion between experts is key
Experts should meet and genuinely discuss issues at hand, even if the experts believe they understand each other's perspectives. Consider using a facilitator to help guide the discussion.
• Experience matters more than having your expert write the first draft
Don't get hung up about having your expert draft the first version of the joint report. The sequence of previous expert reports is often the logical basis for which expert should start drafting the joint report. Providing your expert is experienced in the process of joint reports, it should make no difference whether they go first or not.
• Agreeing orders can address instructed assumptions
Where experts have different instructions, a joint report is unlikely to uncover additional areas of agreement. While instructions on the opposing side can be challenged, ambiguity may be eliminated by agreeing orders for the experts to address key issues, including matters on which they are instructed.
• Don't underestimate the time required to prepare a joint report
It is not uncommon for 10+ versions of a draft joint report to pass between experts before a final report is agreed. Timelines are important to set expectations when advising clients and managing costs, but unrealistic timelines will impact on the quality and effectiveness of the joint report.