Justice | The Supreme Court of New South Wales
Utilised in the adversary system to receive the evidence of the experts engaged to assist the court in resolving the dispute.
Experts of any party who have similar expertise and will give evidence about the same issues are required to provide written reports which are exchanged between them. They are then required to meet and identify the issues upon which they disagree. During the trial the experts give evidence at the same time. The list of the issues upon which they disagree becomes the agenda for a discussion which is chaired by the judge. The experts may ask each other questions and the advocates for each of the parties may also ask questions of any expert witness. Apart from chairing the discussion, the role of the judge is to ensure, by asking appropriate questions, that he or she has a complete understanding of the evidence of each expert so that if areas of disagreement remain between the experts at the end of the trial the judge is able to efficiently resolve those issues.
1. Can you briefly describe the innovation, the problem it tries to solve and why is it necessary?
The adversarial system assumes that each party to any dispute will retain their own experts in relation to any issue requiring expert consideration. Concerns have emerged over a significant period of time that when retained by a party an expert may lose objectivity and their evidence will be affected by “adversarial bias.” Concerns have also been expressed about the cost of experts and the amount of court time required if they are examined in the traditional adversarial manner. Furthermore, when I was appointed as the Chief Judge of the Land & Environment Court of New South Wales I became aware that many well-qualified persons would not accept a retainer to assist a party to litigation if they would be required to give evidence under the traditional adversary system. They did not believe that system was designed to elicit the true position but rather became a contest where, irrespective of the merits of a particular expert’s opinion, the object of the advocate was to endeavor to destroy that person’s evidence. I was also made aware of many concerns about the cost of expert evidence, particularly in relation to complex technical issues and was told of problems with advocates being able to master the complexities and effectively examine or cross-examine the expert. Many professional bodies indicated that a system which did not provide for the experts to be able to ask questions of each other in the courtroom was liable to fail to identify the appropriate response to the issues.
Concurrent evidence allows for a refining of the issues in dispute before the trial and can save up to 80% of the court time which the conventional adversarial approach would have required. It also enables the experts to ask and answer each other’s questions thereby ensuring that the position of any expert is not masked or confused by inadequacies in the advocate’s understanding of the situation. Concurrent evidence gives the judge the benefit of a discussion with the experts which significantly enhances the judge’s capacity to understand their evidence and reach a conclusion.
2. What makes your innovation unique?
The conventional adversarial process provides for experts to give evidence individually and be examined by advocates without any opportunity to discuss the issues with each other in the courtroom. Concurrent evidence changes the process so that the experts now give evidence together and engage each other in discussion about the issues. It is a fundamental change to the way in which expert evidence is given under the adversary system.
3. What triggered the development of the innovation?
As I have previously indicated the development of concurrent evidence was triggered by concerns in relation to the integrity and cost of expert evidence together with an apprehension that judges were not receiving expert evidence in a manner which could best assist them to resolve the issues between disputing parties.
4. Which persons and organisations were involved in the development and what role did they play?
I was responsible for introducing concurrent evidence in the Land & Environment Court of New South Wales in 2003. I developed the procedure and used it in the first case and it was then utilised by the other judges and commissioners of that court. When introducing the process I consulted with the professional organisations of both the lawyers and various experts. The New South Wales Judicial Commission made an educational DVD to ensure that all judges and experts were able to gain an understanding as to how the process works.
I was appointed as the Chief Judge at Common Law of the NSW Supreme Court in 2005 and have since introduced concurrent evidence in that court. Both myself and other judges have given many lectures to practitioners and judges about concurrent evidence.
5. What kind of resistance have you encountered and how have you overcome it?
As with any change to a process in the courts there was resistance from some legal practitioners and reluctance in some judges to adopt a new procedure. Those problems have been addressed by a continuing process of education. As legal practitioners and judges have become more familiar with the process resistance has largely fallen away. Apart from the New South Wales Land & Environment Court and the New South Wales Supreme Court concurrent evidence is utilised in many courts and tribunals throughout Australia. I understand that with the benefit of access to the educational DVD concurrent evidence is also being used in courts in Singapore, Hong Kong, Malaysia and the United Kingdom.
6. How did you make the goals realistic and attainable, and at what time will which quick wins be available?
Because the goals of concurrent evidence are to improve the integrity and quality and minimise the cost of expert evidence in the courtroom they were readily identified and understood by all participants in the litigation process. Although I was initially unsure of the likely effectiveness of the process it became almost immediately apparent that the identified objectives would be met. There has been little change in the procedure since it was first introduced although, depending upon the circumstances of the particular case minor variations in the procedure may be necessary.
7. Will the innovation have an effect on other organizations in the chain and if that is the case, how will it affect them?
Concurrent evidence does not have a direct effect on other organisations but has been taken up by many other courts and tribunals throughout Australia.
8. How was the development funded and what were reasons for the financing organisation?
Concurrent evidence did not require public or private funding. Because of the efficiencies in the courtroom it has been able to save both public and private funds.
9. Can you name 3 to 5 characteristics of the innovation that are most essential to make it work?
When using concurrent evidence it is essential that after the exchange of their written reports there is a meeting of the experts before the trial to identify the issues in dispute between them. Those issues must be incorporated into an agenda for a discussion between the experts in the courtroom. It is essential that the judge chair that discussion and ensure that each expert has the opportunity to put forward their view in relation to any particular issue and have an opportunity to ask questions of other experts about those issues.
10. How do you measure whether it is a successful innovation?
It is not possible to objectively determine the success of concurrent evidence. However, it has been met with almost universal acceptance by experts, many judges and legal practitioners. To the extent that there has been practitioner resistance it is generally because the advocate loses control of the expert in the courtroom. This is of course an objective of the system to ensure that the court gets the benefit of the expert’s view rather than have those views filtered or modified by the skill of the advocate.
11. How many people or organisations benefit from this innovation now?
All litigants involved in cases where expert evidence is utilised and the courts in which that litigation occurs benefit from concurrent evidence.
12. How many people or organisations could potentially benefit from it now or in the future?
All courts which have adopted the adversary system could potentially benefit from using concurrent evidence. It is also a model which is likely to prove useful in the inquisitorial system. Concurrent evidence has been used in international arbitrations and by some courts outside Australia. So far as I am aware there are no cultural issues which could inhibit its effective use in any judicial system in the world. My own view is that in the 21st century courts must utilise a system which provides an appropriate opportunity for experts to express their views in an exchange of ideas and opinions between the experts in the courtroom.
13. Can you quantify the financial benefits?
The financial benefits come from the savings in court time from concurrent evidence which can cut the hearing time for expert evidence in a particular case by up to 80%. It has also been our experience that significantly more cases settle when concurrent evidence is utilised probably because the joint meeting of experts before trial causes one party to realise that their position cannot be sustained in a trial.
14. Is the innovation financially viable and sustainable and if yes, how?
Concurrent evidence adds no costs to the system.
15. Did you receive any recognition?
I have received no rewards but many expressions of appreciation of concurrent evidence from practitioners and experts.
16. What lessons did you learn along the way that could be useful to others?
As with any change in a court process the education of practitioners and experts is of the utmost importance. Any court contemplating the introduction of concurrent evidence should make sure that those who will be involved have an effective understanding of the system before it is used in a courtroom.