Concurrent Expert Evidence,an Australian Forensic Pathology Experience

Historical Aspects of Concurrent Witness Evidence

Essentially an Australian innovation, one of the first uses of concurrent witness evidence was in court proceedings by Justice Rogers involving an insurance case in 1985 (1). It is now well entrenched in civil litigation and has been used in civil disputes involving claims of medical negligence (1,3). It is not restricted in its field of application and may be used in all fields where expert evidence is required. Whilst previously restricted to civil, commercial, and regulatory matters, it is now being used in both judge alone trials, jury trials, and in both criminal and civil proceedings. Its use has been championed by the Honorable Justice McClellan in the Land and Environment Court of New South Wales (1) as well as in cases in the Australian Trade Practices and the Administrative Appeals Tribunal (3). It has been further adapted for use in the common Law divisions of the New South Wales Supreme court, the Queensland Land and Resources Tribunal, and the Federal Court of Australia (5). It is now considered the default procedure for all matters requiring expert evidence from more than one expert in the main field in the Land and Environment Court (5).

It has been proposed for use outside of Australia, with a pilot scheme undertaken in the United Kingdom and the technique has been approved for use in both Canada and Singapore.

Objectives of Concurrent Witness Evidence

The traditional adversarial process for tendering expert evidence in court proceedings relies on each party calling one or more expert witnesses whose evidence supports a particular party's case. Each expert's evidence is in turn tested by examination and cross-examination. Potential highlighted pitfalls in this adversarial method include the tedious nature of the evidence, the potential for the issues at hand to be blurred in a maze of detail, and the perception of constraint felt by experts when having to answer questions that may misconceive or misunderstand their evidence (1).

Furthermore, the court does not have the opportunity to assess the competing opinions of the experts, and juries, judges, and tribunals may become concerned that an expert is partisan or biased (1). The hot tub offers the potential to concentrate on the real issues at hand between the opposing experts, and the judge has the ability to hear all experts discussing the same issue at the same time with the added ability of experts to communicate with each other in a more collegial manner (1).

The process is able to reduce the chance of misunderstanding and creates a setting in which evidence and opinions of expert witnesses can be better explained, analyzed, and understood in an enhanced and efficient operation of proceedings (6). Its potential is greatest when the expert evidence is central to the issue in dispute and through the concurrent giving of evidence, experts will be commenting on the same issue at the same time (6).

Procedure

Concurrent evidence involves both a pretrial and courtroom phase. The pretrial conference or “experts conclave” sees each expert produce a separate report highlighting the issues at hand as they interpret them. They attend a pretrial conference to confer, without the presence of lawyers, and prepare a joint report highlighting the issues on which they agree and disagree. The process allows the identification of areas of agreement and disagreement and quickly highlights the key differences between experts (6,7). The joint report is then tendered to the court as a summation of the critical issues.

The second phase involves the examination of the expert witness in the courtroom setting. The experts are sworn in together, each taking an oath or making an affirmation. The judge, then referring to the summary of matters on which they agree and disagree, directs a discussion of the issues of disagreement (5). The process provides an opportunity for each expert to place his/her opinion on each particular issue before the court, and, importantly, the experts are encouraged to ask and answer questions of one another. The counsel is provided an opportunity to question the experts on their evidence or matters of credit (5). Each attorney may ask questions of each of the experts, ensuring their representatives opinion is fully articulated and further, cross-examine the opposing experts opinion. The judge, at the end of the discussion, will ask questions to ensure each expert has had the opportunity to fully explain their position.

The stated advantages of concurrent evidence are evident in both the administration of the process and of the quality of evidence in which it produces. Administrative benefits include greater efficiency and reductions in court costs and time, whilst potential advantages to the quality of evidence and outcomes include the ability for experts to comment on each others evidence, thus allowing for greater clarity, clear identification of disagreement, and potential highlighting of partisan or clearly incorrect opinions that are not in line with industry standards set within that particular field. Peer presence can increase objectivity and accountability of experts. Furthermore, lengthy and unnecessary cross-examination on matters that are not of real importance can be avoided. Finally, judicial decision making is facilitated because evidence on one topic is given by all experts at the same time, thus making it easier for courts to compare the evidence and evaluate its weight or persuasiveness (5,7,8).

Concurrent evidence may assist experts in fulfilling their role as independent advisors enabling their views to be better tested, explained, understood, and analyzed, enhancing the courts ability to make the correct or preferable decision (8).

Potential pitfalls in the process of concurrent evidence include difficulties managing evidence given by experts concurrently, the lack of uniformity of the process amongst different judges and courts, the fact that experts may be influenced by listening to evidence given by another expert, and the belief that witnesses may be somehow disadvantaged or overridden by those who are more aggressive or articulate. As to the last point, the process of giving evidence in front of professional colleagues, and thus having to answer to them, lessens the opportunity to diverge from intellectual context, thus allowing each expert opportunity. The ability of the judge to also moderate the discussion may lessen the impact of differing personalities.

Further, following the evidence procedure, it is possible that disagreements may persist and the process may not in fact have been helpful in resolving these issues. In these instances it is imperative firstly, that the judge has given each expert the opportunity to articulate himself/herself and secondly, that counsel has been given opportunity to cross-examine the experts so that their opinion is fully articulated and tested against the opposing opinion (5).

A document produced by the Family Court of Australia entitled The changing face of expert witness highlighted several issues with the adversarial process (9). They believe the most significant issues, which arise upon consideration of expert evidence, are potential partisanship and lack of objectivity, with the perception that some experts act as advocates for those who instruct them. Additionally, experts may exceed their area of expertise, thus impeding the fact-finding process. They concluded that the Family Court would benefit from reforms designed to make evidence more explicable and transparent (9).

Case Example

A teenage male collapsed following a melee in the schoolyard. Witness statements were conflicting as to the actual events, including whether another person had struck him. On presentation to hospital he was found to have a basal subarachnoid hemorrhage. He died the following day. Autopsy, including a postmortem computed tomography vertebral angiogram, showed no definitive cause for the hemorrhage. In particular, there were no aneurysms seen in the Circle of Willis and no injuries were seen in the vertebrobasilar arterial system.

The case was subsequently referred to a Coronial inquest where the interpretation of the neuropathological findings was a central issue in the inquest into his death.

The case was further complicated by interjurisidictional issues in that the incident occurred in State B, near the border with State A, and the patient was taken to the nearest tertiary care hospital which was in State A, where he died. The inquest was held in State B.

Opinions were sought from specialists who were involved both directly in his clinical care and with the autopsy process, as well as independent specialists:

As part of the concurrent evidence process, each specialist was required to write an independent report outlining their individual findings and interpretations and then had the opportunity to review each other's report. A conclave at the Crown Solicitors office in State B was convened, with a legal officer acting as facilitator and scribe, and a joint report was produced detailing both points of agreement and, importantly, points of disagreement between all specialists involved.

At the inquest (in State B), four experts attended (Forensic pathologist, Neuropathologists A and C, and Neurosurgeon). They were sworn in together and sat together in the jury box (a jury was not present in this particular inquest). The joint report was discussed, led by counsel assisting the Coroner. Points of difference or disagreement, which were highlighted during the conclave process, were discussed in detail, and each specialist was given the opportunity to discuss the reasons for their opinion. And, importantly points could be clarified by direct and immediate discussion between specialists.

The collective experience of the use of concurrent evidence or hot tubbing by medical specialists in this case was positive and the following observations were made: key problems could be identified and addressed in a logical sequence; issues irrelevant to the principle problem were dealt with only briefly; the appropriate person could answer specific questions as they arose; medical evidence was able to be clearly stated to enhance its understanding by nonmedical persons, including the Coroner; and there was an overall short time for evidence (less than one day for four expert witnesses), as there was no requirement for repetition of questions for each expert witness and no requirement for repeat attendance of witnesses to deal with issues arising from the evidence of others.