By: Luka Dickson

During a construction claim, parties have the option to enlist an expert witness. Their role is to provide a non-partisan opinion, from a position of authority, regarding the details of the case. The expert witness compiles a report regarding the case facts and expresses their opinion of the recommended claim outcome. They are not an advocate for the party that hired them and must uphold a strict code of conduct when presenting information in court, to ensure it is unbiased and truthful. The judge can then use the information and opinions provided within the expert witness report to influence the decisions.


Multiple expert witnesses

Often a construction claim or dispute will involve the input of multiple expert witnesses. This may be due to multiple parties involved in the claim hiring witnesses, or the court requiring further insight or assessment within the case. In this scenario, it is common for opinions on the appropriate outcome of a claim to differ. Each expert witness’s different interpretations of information, law, and data may lead them to conclude different opinions.

When multiple expert witnesses are consulted during the tribunal hearing, they are often asked to create a joint report. The joint report can help collate and differentiate the opinions of each of the conclave members. Experts have no requirements to come to the same conclusion, shared agreement, or middle-ground solution within this report. They should not feel like they have to water down their opinions to reach an arbitrary middle ground within the discussion for the sake of diplomacy. That is not the role of an expert witness. However, if a conclave member is clearly proven wrong after the presentation of new evidence, they should change their opinion.


What is an expert witness conclave?

A conclave is a discussion between expert witnesses that occurs outside the courtroom without a lawyer present. However, they are sometimes supervised by the arbitrator. The primary purpose of the conclave is for the expert witnesses to discuss which areas they agree and disagree upon, stating reasoning for areas of disagreement. During these discussions, witnesses should clarify what questions they will be discussing. They can talk openly and freely about the details of the case and the range of opinions. It can also provide an opportunity for the expert witnesses to finalise any opinions they were unsure about, by receiving a potentially differing perspective.

The NSW Legislative framework outlines rules and regulations for conclaves as such:

  • Rule 31.20(2)(h) gives courts the power to order experts to confer in relation to a specified issue, either before or after they have prepared their individual reports.
  • Rule 31.24(1) gives courts the power to order experts to confer, either generally or regarding specific matters, and attempt to reach an agreement over any matters in issue. They may then be ordered to prepare a joint report.
  • The joint report must specify matters agreed and matters not agreed upon and the reasons for any disagreement (r 31.26).
  • Rule 31.24(2) allows the experts to confer without legal representatives or a facilitator being present.

Creating a joint expert witness report

A single nominated expert can write the joint report solo, or collaborate with multiple members of the conclave. Usually, it is a simple summary that supplements each of the witness’s individual reports. It often includes a Scott schedule and highlights where the experts agree and disagree so these areas can be focused on within the tribunal. Each member of the conclave usually reviews and amends the report to ensure that all opinions are expressed. The outcome of the conclave and joint report is binding for all parties. All expert witnesses must assess carefully if they feel their opinion has been represented correctly and doesn’t differ from their individual reports.


What is hot tubbing?

Hot tubbing: when multiple expert witnesses are called to the witness box together for cross-examination of their opinions. The key difference here is the discussion taking place within the courtroom, with answers directed to a judge or tribunal rather than a discussion between experts.


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