‘Hot tubbing’ can be anything but ‘just, quick and cheap’

 

With its racy moniker and perceived potential to address the kinds of reservations McClellan CJ raised in Wood v R [2012] NSWCCA 21 (at around [465-470]), the arrival of the expert conclave procedure in this jurisdiction was received with considerable optimism.

 

In theory at least, by the expert having to face-off with their peers, professional pride will supress the willingness to express a one-eyed opinion tailored to the needs of one’s paymaster. Having the experts brought together before the trial to establish the major areas of difference also has the potential of saving valuable court time for debating areas of genuine controversy.

 

In my experience however, us lawyers find it hard to stay out of the process enough to let these advantages bring their ‘just, quick and cheap’ imperative to fruition.

 

The battle simply shifts to areas like how the experts are actually briefed (eg. agreeing upon the assumptions upon which the experts will base their opinion). In fact this is probably the first bit of advice I can give: beware of being railroaded into agreeing a set of assumptions which promotes the opponent’s case in favour of your own. These assumptions can become close to accepted fact in the case, even though we all know from Makita that the underlying facts upon which the opinion is based must each be proven.

 

Nevertheless, Heydon J’s ‘counsel of perfection’ as it is sometimes called, is not always so closely observed amid the cut and thrust of a trial. If we are not careful, assumed facts have the power to take on the status of established folklore.

 

In fact, in some cases agreed assumptions are simply not appropriate. For example, where there is an issue of causation of psychiatric injury. Perhaps more that any other discipline, psychiatry is an area about which minds will differ radically (no pun intended). Part of the reason for this is that a psychiatrist can place differing emphasis, or indeed little or none, on the many various background experiences that make up a plaintiff’s pre and post-accident life. Telling all experts within the conclave which facts they can take into account in rendering their opinion has obvious difficulties in this regard.

 

Another criticism and danger to be mindful of, is that expert conclaves promote a survival of the fittest environment among the experts themselves. The contest becomes one of who is quickest to the mark in finding the ‘alpha’ expert, whose credentials, personality or both will see the others bow to their will.

 

Then there’s the logistics of getting the experts together who, in my experience, seem notoriously difficult to coordinate.

Despite all the work of getting them together in one place to refine their various opinions into something vaguely collective, so many of the joint reports I have seen are nothing more than a cut and pasted collection of the relevant parts of each expert’s individual report.

 

For the conclave process to be ‘just’ practitioners need to exercise great vigilance, but to do so is rarely ‘quick and cheap’.

 

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