Concurrent Expert Evidence – A Novel Evidentiary Device

   

INTRODUCTION

Disputes often raise complicated, scientific and technical issues, which go to the root of the matter. A successful determination of these issues requires the help of the experts or specialists in the field.

In several cases, one finds that expert evidence is critical for arriving at an informed decision on merits. The determination of liability and allocation of damages in such a case would be impossible without the guidance of experts. Whether it is a civil suit or arbitration, decision-makers often rely substantially on expert evidence for their understanding as also to justify their verdict.

Traditional Process of Leading Expert Evidence

Traditionally, the plaintiff (or claimant) leads evidence of all its witnesses, lay as well as expert, first. This is followed by the defendants (or respondents) doing the same in order. Generally, the examination-in-chief of the witnesses is led by way of affidavits. Thereafter, the witnesses are cross-examined by the lawyers and this is recorded in front of the Judge¹. This process is followed for each of the witnesses of the parties.²

The modern experience shows that the recording of evidence usually happens in several sessions each lasting several days. As a result, the evidence is recorded over a year-long period, sometimes even longer. Inevitably, there is a significant hiatus of time in the recording of the evidence of the rival experts in a case.³

The Judges tend to lose track of the expert testimonies, which get recorded in isolation, without any manner of continuity. It is only at the final hearing of the case that the sum total of the expert evidence led in the matter can be reconciled. This reconciliation can often be an extremely cumbersome and inefficient exercise.

To add to the complications, expert evidence may not be confined to a particular technical issue and may encompass several matters. After cross-examining the plaintiff’s expert, the opponent usually examines its own expert(s). The opponent’s experts may raise novel issues in their evidence, upon which the plaintiff’s lawyers will subject them to cross-examination. This rigmarole has serious potential to cause a massive disconnect in comprehension of the rival testimonies and consequent derailment of justice.

Any meaningful opportunity to analyse expert evidence arises only after the trial. The totality of expert evidence is organised by the Judge, issue-wise, only at the final hearing. Besides being an extremely daunting and time-consuming task per se, there is another disadvantage to this — i.e. if any issue needs clarification, the Judges are compelled to recall the expert witnesses — which is a cumbersome and costly affair.

Another hazard that inheres this process is that any direct challenge to expert testimony has to be only in the form of cross-examination by the lawyers. There is no scope for dialectic between experts as this is not an interactive process. Even the Judge is relegated to a more or less passive role. Besides, the cross-examination itself can assume a highly legalistic character, which is unsettling for the experts and risks in sidelining critical issues.

Concurrent Expert Evidence (“CEE”) Method

The Australian courts have devised a novel and highly effective method of leading expert evidence termed as “Concurrent Expert Evidence (CEE)” [“hot-tubbing”, colloquially]. This method is designed to overcome the inefficiencies inherent in the traditional process. CEE is, of course, the generic term and used for all such varied processes by which the testimonies of the experts are recorded simultaneously.

A typical CEE session consists of the following elements⁴:

(a) Each expert prepares her individual testimony in the form of a report or statement. Thereafter, all the experts (on both sides) on a particular subject are directed to confer together, usually without the assistance of lawyers.

(b) As a part of this conferencing, they are required to prepare an issue-wise, joint report, which would contain matters of agreement and disagreement between them, with brief reasons for the points of disagreement. The joint report is circulated amongst the parties and the Judge. This is done before the recording of evidence commences at the trial.

(c) At the trial, each expert appears before Judge and explains her position on the contentious issues, which is recorded by the Judge as her statement. The Judge is at liberty to seek clarifications of her doubts even at this stage.

(d) This is followed by the opponent’s expert commenting on this statement. The experts are permitted to cross-question one another at this stage and discuss the issues threadbare.

(e) What follows is the cross-examination of the experts by the lawyers in turns. If the lawyer’s question receives an unfavourable answer from the expert, or if the lawyer does not fully understand the expert’s response, she can turn to her own expert and invite comments from the expert.⁵ At this stage, the Judge, too, can pose her own questions to the experts.

All this gets recorded in the transcript and forms part of the evidence. The processes described in (c) to (e) hereof should ideally conducted subject-wise and issue-wise, so as to enhance the clarity of the exercise.

Origin and History of CEE

The origins of this novel and extremely effective dialectical method can be traced to 1976, when it was pioneered by Justice Lockhart, a federal justice, in a case tried by the Australian Trade Practices Tribunal. In the 1980s and 1990s, the process was deployed by the Australian courts on an ad hoc basis i.e. without being reflected in the Civil Procedure Rules, which came later in 1998 in certain courts. CEE was deployed in several cases in courts in the New South Wales territory of Australia, inter alia, and some courts in New Zealand⁶. In or around 2004, CEE became firmly entrenched in Australian procedural rules and now several Australian courts, such as the Federal Court of Australia, the Administrative Appeals Tribunal, the Supreme Courts of New South Wales and the Australian Capital Territory and the Land and Environment Court of New South Wales, have adopted CEE in their respective civil procedure regulations.⁷

The most extensive use of this process in Australia (and perhaps in the world) was in Kilmore East Bushfires case⁸ (2009), wherein six CEE sessions were conducted, involving forty experts in eleven fields of expertise, some as complex as fracture mechanics and vibration theory.⁹ Statistics show that as of 2017, CEE became the norm for recording expert evidence in Australian courts⁹.

United Kingdom too followed suit in 2013, by introducing CEE in the Practice Directions to the Civil Procedure Rules. The motivation for this stemmed from Lord Justice “Review of Civil Litigation Costs” Report (2009), which highlighted its cost-saving function. The recommendation in the Jackson Report was followed up with a successful, two-year pilot test study on the use of CEE in cases in 2010-12¹⁰ in certain Manchester Courts, such as the Mercantile Court, the Technology and Construction Court and the Manchester Chancery Court.¹¹

In the United States of America, CEE has come to be used in recent times on an ad hoc basis by federal courts.¹² There has been no procedural reform, perhaps on account of the flexibility of the language of the applicable Federal Rules of Evidence, particularly Rules 611 and 614, which confer upon the Judge wide powers to decide the trial procedure.¹³ One of the first recorded uses of CEE in USA was in Black Political Task Force v. Galvin¹⁴ (2004) by the Massachusetts District Court, where statistical evidence, led by two opposing political scientists in a dispute concerning a challenge to a legislative redistricting plan, was recorded using CEE method.⁹

The Delhi High Court introduced CEE in its procedural Original Side Rules in October 2018.¹⁵

The relevant rules regulating the civil procedure for CEE sessions in New South Wales, Australia and the latest Practice Direction 35.11 to the Civil Procedure Rules (UK), which deals with CEE, are set out in Appendix I (infra).

CEE has gained a lot of traction in international arbitrations in recent times. A 2012 Whyte and Case LLP Survey showed that 60% of the respondents in the survey used CEE in international arbitrations in the previous five years, particularly technical arbitrations involving complex issues and multiple experts.¹⁶ All in all, fora across various jurisdictions have successfully tried and adopted CEE as a part of their civil trial procedure.

Efficiencies of CEE

CEE has been commended by academicians and practitioners alike, for its myriad benefits for the trial. Firstly, the joint expert report reduces the extent of disagreement to real and manageable limits, often a few points. With the dissenting points thus clarified, recording of evidence becomes a highly focused exercise.¹³ The issue-wise segregation of expert evidence at the outset¹⁷ lends tremendous clarity and enhances comprehension for all.

Secondly, in the traditional procedure, it is extremely difficult to compare the methods and reasoning process of the opposing experts, who often present complicated, statistical and probabilistic evidence in support of their views. In several cases, the differences of opinion emanate from the distinct assumptions that underlie their views. CEE has the potential to bring these distinctions to the fore early on in the trial.¹³ A direct and immediate comparison between the conflicting testimonies is achieved at the outset.¹⁸ This enables a structured discussion between the experts,¹⁹ who then undergo rigorous and searching examination together.²⁰

In the CEE process, the Judge assumes the leading role as the moderator of the discussion between the experts and lawyers. She can ask questions and clarify her doubts as and when they arise and arrive at her conclusions on the spot.²¹ The overarching tone in such method is one of a sensible colloquium between wise men, which increases the possibilities of comprehension of the complex, technical issues. The general tone is less confrontational and geared towards an open and fair discussion without any window dressing or surplusage.¹³

For the experts, CEE affords an opportunity for a more complete expression, without any interference from the lawyers.²² Moreover, what would have otherwise been a purely adversarial, confrontational process, is transformed into a more cooperative and congenial enterprise.²³ In the entire exercise, experts are made to feel like impartial and independent educators, as opposed to advocates for the parties who have engaged them.²⁴ This process recognises that experts are generally better placed to examine and question each other and brings out the best critiques of rival testimony.

Insofar as the lawyers are concerned, Justice Steven Rares of the Federal Court of Australia notes that CEE allows them to focus on the critical differences in expert evidence and hammer the strengths of their own case with the aid of experts in the box.¹⁹

For decision-makers, CEE lessens the load on their cognitive and retention faculties, thereby enhancing the possibility of arriving at a rational and well-advised decision. With contemporaneous comparison of rival expert evidence, the Judge gets a fuller grasp of the real issues and rival views behind the evidence. This process also averts recalling of experts after the trial²⁵.

CEE has the added advantage of being an extremely flexible process. As there is no exact formula that would confine the Judges and arbitrators, they are free to devise processual details on their own.²⁶ Judge Zouhary of the United States District Court of Ohio, puts it inimitably:

“Throwing everybody in the water at the same time allows the court, counsel, and experts to confront each other directly. Counsel may also follow up and direct questions to the experts. They may ask questions of their own expert to clarify or rehabilitate — or question the opposing expert to drive a point home. In short, everyone gets a swing.”

His Comment on CEE is extremely instructive as it describes his first-hand judicial experiences of CEE in trials.²⁷

CEE’s time-saving function has been lauded as extremely significant.¹³ For example, in Coonorra Penola v. Geographical Indications Commission²⁸ (2011), a case tried by the Australian Administrative Appeals Tribunal, the time scheduled for recording expert evidence was reduced from the originally allocated six (6) months to just five (5) weeks on account of the use of CEE¹³. The Land and Environmental Court in New South Wales, Australia, records time-saving to the tune of 50-80%, which is extremely significant.²²

In 2016, Civil Justice Council (CJC), an advisory public body which oversees the modernization of the civil justice system in the United Kingdom, published its Report on the use of CEE in civil trials since its formalised introduction in 2013, where it has noted that CEE definitely led to significant time-saving.¹¹ The other gains in terms of efficiencies highlighted above, were also observed in the CJC Report on CEE.¹¹

Notes of Caution

CEE is not without its share of criticism. Those who have studied the working of CEE in various jurisdictions echo the following concerns about the process:

Judicial preparedness and skill

CEE requires the Judges to take charge of the entire process. The Judge has to be extremely skilled as a moderator and prepare for the CEE session well in advance.²⁹ Again, if the process is not monitored, it could end up being an unwieldy quarrel between the experts.³⁰ On the other hand, the Judge needs to ensure that the process does not end up as a highly technical or advanced-level debate, which is beyond the comprehensive capacities of the other participants.¹³

Imbalance between rival experts

For a successful CEE session, there must be a similarity in the levels of knowledge and communication skills of the rival experts. The Judge has to be particularly discerning to avoid dominative behaviour and keep the tone of the proceeding respectful and merits-oriented.³¹ This may render the method unsuitable in several cases where such conditions are absent.

Increase in costs

Some academicians like Prof. Davies and Prof. Edmond in Australia have noted that CEE can turn out to be a very expensive process in several cases.³² Interestingly, even the Civil Justice Council Report (2016) observes that English experience showed that the costs incurred for CEE are almost the same as or sometimes higher than, the traditional procedure.¹¹ This is quite surprising since it was CEE’s presumed cost-saving function that earned it a place in the Jackson Report (2013) and was one of the driving forces behind its introduction in the English civil procedure regulations.

CONCLUSION

CEE definitely has significant advantages over the traditional procedure in theory. How these efficiencies play out in practice is dependent on several factors, such as the skill of the Judge and the cooperative extended by the participating experts and lawyers. The concerns, or rather apprehensions, expressed by the critics of CEE are real as they emanate from experience.

However, the author believes that none of these are intrinsic to CEE per se and, as such, are quite capable of being addressed through coordinated efforts. The civil dispute resolution environment in India, at least in the superior courts and arbitral fora in major cities, is sophisticated enough for the adoption of CEE in a mature and rational way, as can be seen from the recent Delhi High Court amendment to its procedural rules on its Original Side³³.

Arbitrators in domestic and international arbitrations, being the masters of the procedure under the 1996 Act, can start deploying CEE in suitable cases. The judiciary will have to take a conscious call in this regard. The change may start with the High Courts having original jurisdiction amending their rules, as in the case of the Delhi High Court. Legislative intervention on this in the form of amendments to the Code of Civil Procedure, 1908 is always welcome.

Appendix I

(1) Uniform Civil Procedure Rules, 2005 — New South Wales (Australia):

31.24. Conference between expert witnesses (cf SCR Part 36, Rule 13CA; DCR Part 28, Rule 9D; LCR Part 23, Rule 1-E)

(1) The court may direct expert witnesses:

(a) to confer, either generally or in relation to specified matters, and

(b) to endeavour to reach agreement on any matters in issue, and

(c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

(d) to base any joint report on specified facts or assumptions of fact, and may do so at any time, whether before or after the expert witnesses have furnished their experts’ reports.

(2) The court may direct that a conference be held:

(a) with or without the attendance of the parties affected or their legal representatives, or

(b) with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or

(c) with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue).

(3) An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect.

(4) Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.

(5) An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected.

(6) Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing.

(2) Practice Direction 35 (Experts and Assessors), Rule 11 (UK)(as updated on 21-12-2017):

Concurrent expert evidence.—

11.1 At any stage in the proceedings the court may direct that some or all of the experts from like disciplines shall give their evidence concurrently. The following procedure shall then apply.

11.2 The court may direct that the parties agree an agenda for the taking of concurrent evidence, based upon the areas of disagreement identified in the experts’ joint statements made pursuant to Rule 35.12.

11.3 At the appropriate time the relevant experts will each take the oath or affirm. Unless the court orders otherwise, the experts will then address the items on the agenda in the manner set out in paragraph 11.4.

11.4 In relation to each issue on the agenda, and subject to the Judge’s discretion to modify the procedure:

(1) the Judge may initiate the discussion by asking the experts, in turn, for their views. Once an expert has expressed a view the Judge may ask questions about it. At one or more appropriate stages when questioning a particular expert, the Judge may invite the other expert to comment or to ask that expert’s own questions of the first expert;

(2) after the process set out in (1) has been completed for all the experts, the parties’ representatives may ask questions of them. While such questioning may be designed to test the correctness of an expert’s view, or seek clarification of it, it should not cover ground which has been fully explored already. In general a full cross-examination or re-examination is neither necessary nor appropriate; and

(3) after the process set out in (2) has been completed, the Judge may summarise the experts’ different positions on the issue and ask them to confirm or correct that summary.

*The article has been published with kind permission of SCC Online cited as (2021) 5 SCC J-21