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Conclaves and concurrent expert evidence: a positive development in Australian legal practice?

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Many medical practitioners are called up to provide expert evidence in court. Some medical practitioners do so frequently, such as in personal injury litigation, including claims asserting medical negligence.

Traditional expert evidence sees testimony given sequentially by expert witnesses for one side and then the other, with the experts being examined and cross examined by the legal representatives for each side. The change to pre-hearing meetings of experts (conclaves) being convened to prepare joint reports to identify areas of agreement and disagreement, followed by concurrent expert evidence at trial, appears to have been driven by judicial preference, with the underlying rationale being the desirability of facilitating the “just, quick and cheap resolution of the real issues in proceedings”: s 56 of the Civil Procedure Act 2005 (NSW) and, for some matters, Supreme Court Practice Notes (SC CL 5 and SC CL 7).

Judicial comment on concurrent expert evidence seems almost universally favourable.1 For example, in Halverson v Dobler [2006] NSWSC 1307, a medical negligence case, after hearing concurrent evidence from medical experts including four cardiologists (one by satellite from the United States) and five general practitioners, the trial judge observed:

This process proved both highly productive and efficient and has been…