Family law proceedings often involve complex disputes that require expert testimony to resolve intricate issues. Expert conferences, also known as ‘conclaves’ are meetings where experts from both sides come together to discuss their opinions and attempt to reach a consensus.
These meetings can streamline the judicial process by narrowing down the points of disagreement and clarifying technical aspects for the court.
Concurrent evidence, colloquially referred to as ‘hot tubbing’, is a method where experts give evidence simultaneously, allowing for immediate clarification and comparison of their differing viewpoints.
This approach can enhance the efficiency and effectiveness of family law proceedings, providing the judge with a clearer understanding of the issues at hand.
Rule 7.26 of the Federal Circuit and Family Court (Family Law) Rules 2021 (‘Family Law Rules’) allows a party to write to the expert with questions aimed at clarifying the single expert’s report. These questions must be submitted within 7 days of a conference with the single expert or, if no conference is held, within 21 days after receiving the single expert’s report.
Many experts would view this as a challenging scenario where the stakes are high in terms of one’s professional standing and reputation and where power dynamics may be influenced by personality traits. Understanding expectations and managing these situations effectively aids in achieving helpful outcomes for the Court.
Division 7.1.7 provides that if two or more parties to a case intend to tender an expert report or produce evidence from an expert witness about the same question, or a similar one, then the parties must:
During the conclave, the experts must reach a conclusion on the evidence and produce a joint statement of their agreements and disagreements, which may be used in cross-examination at the trial.
Many experts would view this as a challenging scenario where the stakes are high in terms of one’s professional standing and reputation and where power dynamics may be influenced by personality traits. Understanding expectations and managing these situations effectively aids in achieving helpful outcomes for the Court.
Division 7.1.7 provides that if two or more parties to a case intend to tender an expert report or produce evidence from an expert witness about the same question, or a similar one, then the parties must:
Separate conferences may be required between experts in different specialities about different issues in a case. Rule 7.31(2) provides that the Court may order:
Rule 7.31(3) provides that at the conference the experts must:
The conference should be conducted in a manner that is flexible, free from undue complexity and fair to all parties. The experts may appoint one of their number as a chairperson. However, if one of them requests and the parties agree or the Court orders, another person may chair the conference. Secretarial or administrative assistance should be provided by the parties if requested by the experts. If the experts agree, one of them or a secretarial assistant may be appointed to make a note at the conference of matters agreed and matters not agreed and reasons for disagreement.
The conclave may be adjourned and reconvened, as necessary. At the conclusion, the experts must write a joint statement, specifically addressing the items listed at Rule 7.31(3)(e). The experts may specify in the joint statement other questions that they believe would be useful for them to consider. If an expert has a contrary view, they should express it. The statement must be signed by all participating experts immediately at the conclusion of the conference or as soon as practicable thereafter.
The participating experts should not seek advice or guidance from the parties or their lawyers prior to signing the joint statement.
Rule 7.31(4) provides that where experts reach agreement on an issue, the agreement does not bind the parties unless the parties expressly agree to be bound by it.
Rule 7.31(5) provides that the joint statement may be tendered by consent as evidence of matters agreed and to identify the issues on which evidence will be called.
The experts should respond individually to the questions asked based on the witness statements. Their responses need to state the assumptions made, including the opinions based on any alternative assumptions. They are required to state any contrary view, accepting as fact the matters stated in witness statements or assumptions submitted to them.
Where there are competing assumptions, alternative answers may have to be provided to a question or questions, specifying which of the assumptions are adopted for each answer.
Sometimes, this process will identify that the experts agree on everything that each has said in his or her reports, on the basis that the opposing expert accepts the assumptions that the other has used. This narrows the focus, allowing the evidence to proceed to the critical and genuinely held points of difference. A respectful exchange of views will often see experts arrive at a consensus that becomes clear through the process. In cases where no agreement is reached, the subject of that disagreement will become the point of debate that takes place during the concurrent evidence session (the ‘hot tub’) which takes place at the trial.
Many conclaves now include a facilitator, often a senior judicial registrar, who acts as a neutral third party to assist the process. Some experts support using a facilitator, as this can result in fewer problematic personality differences between experts and clearer written reports with less jargon. Alternatively, a subject matter expert can act as a facilitator, though this is less common and adds extra expense to the process.
“Expert conferences, also known as ‘conclaves’, are meetings where experts from both sides come together to discuss their opinions and attempt to reach a consensus.”
When does the process go wrong?
Despite careful planning, there are scenarios where expert conclaves may not lead to a positive outcome, including when:
While good planning cannot eliminate these risks, raising one’s awareness of them prior to the conclave can improve the likelihood of a successful outcome.
After the conclave
Once the conclave is completed and the joint report filed, the adversarial expert may confer with their instructing solicitors to discuss the joint report (this is not open to Single Experts). This discussion allows for explanations of any changes resulting from the experts’ conference and ensures that counsel understands the remaining differences between the experts. Although the conclave has ended, preparations for cross-examination are just beginning.
The ‘Hot Tub’ Experience
Concurrent expert evidence, commonly referred to as ‘hot tubbing,’ is a method for presenting and examining expert evidence that has been widely advocated in Australia. In New South Wales, concurrent evidence has become a standard evidentiary procedure in major courts and tribunals. Although relatively rare in family law proceedings, it is fast gathering traction.
This approach involves all experts from similar disciplines providing their testimony simultaneously. Courts are arranged to accommodate multiple witnesses giving evidence concurrently.
In court, experts from both parties are sworn in and sit together in what is informally known as the ‘hot tub’ and present evidence concurrently in an interactive process moderated by the judge. Experts provide their individual opinions and undergo cross-examination by counsel, similar to a traditional adversarial trial. However, in this scenario, the experts present their viewpoints simultaneously rather than sequentially, and they can interact to correct or disagree with each other’s views. The judge may also intervene with questions to enhance the fact-finding process. This method aims to be a discussion among professionals to improve the search for truth. It incorporates certain inquisitorial elements while still using fundamentally adversarial techniques in a non-traditional setting.
Concurrent evidence is designed to streamline trials, reduce work, enhance fact-finding and judicial decision-making, and improve settlement prospects. It typically involves less direct confrontation and promotes a more collaborative dialogue among experts, making them more open to reconsidering and modifying their original opinions.
While some critics have suggested that the process may result in the more persuasive, confidant or assertive expert dominating or overshadowing the opinions expressed by other experts, it is suggested that these criticisms have not been validated in practice and that experts, in general, take their codes of conduct very seriously. The rules of professional conduct for lawyers apply equally, in that lawyers must not interfere with the integrity of the expert’s evidence or seek to manipulate it.
As an experienced single expert witness, being ordered to participate in a conclave or to ‘hop in the hot tub’ is less daunting due to familiarity with the process. Similarly, many lawyers who were opposed to the process have started to support it over time. Additionally, new skills are being honed and novel cross-examination techniques are surfacing. Concurrent evidence practices are likely to persist.
Fiona is a Clinical Psychologist who has worked with children and families for over 3 decades, including as a school psychologist and a Court Child Expert. With her extensive experience, Fiona is one of 20 Experts at The Relationspace, a dedicated practice providing Expert Opinion to the FCFCoA and across other jurisdictions where Psychiatric Assessments, Parenting capacity, Single Expert reports, Child Impact and Specific Issues assessments are sought to assist the Court in matters relating to children and parenting arrangements. Fiona presents at conferences, both nationally and internationally, and is the editor of the Pacifica Congress’ magazine, Issues.