The RMLA has recently facilitated workshops up and down the country to discuss expert witness conferencing. The workshops were attended by resource management lawyers and consultants from a wide range of disciplines. The focus of the workshops were to discuss the current practices adopted for expert witness conferencing, and develop some best practice guidelines – in terms of both procedure and the production of joint witness statements.
Mediation has been a technique used, both formally and informally, in the RMA context for many years. More recently, the Environment Court has also directed expert witnesses to conference. There are distinct differences between mediation and conferencing. Mediation will typically involve counsel, clients, and expert witnesses, with the purpose of trying to resolve the matters of the appeal. In contrast, expert witness conferencing occurs between the experts in one discipline that have been called by the various parties and they meet without counsel or clients present. Conferencing usually occurs after the experts have prepared and exchanged their evidence, with the purpose of discussing their methodology, reasoning and conclusions, and to confirm if there are any factual matters, opinions, or other issues that they agree on. The outcome of the conference session is then recorded in a joint witness statement which is signed by those participating and then filed with the Court and served on the parties, and forms part of the evidence for the hearing. This distinction is important – it is not for expert witnesses in a conference to make concessions in order to reach agreement.
The need for the workshop arose from the increasing frequency of expert witness conferencing, and that joint witness statements often have a wide range of content, form, and degree of benefit for the Court. Expert evidence plays a very important role in Environment Court proceedings, and due to the nature of an appeal, it is common place that expert witnesses for different parties will have different points of view. Expert witness conferencing can therefore be very helpful in assisting to narrow the differences between the witnesses, clarify why they reached different conclusions, and can help resolve technical issues.
Some of the issues raised and discussed in the workshop were:
- it is better for caucusing to occur after the exchange of evidence, except for planners who could meet prior and prepare a joint statement on relevant plans, policies and weight to be given to documents, etc;
- will say statements add an additional layer of work and cost to the process;
- it would assist to have better direction from counsel on the issues to be discussed and if a facilitator should oversee the session;
- facilitators are beneficial in some situations (particularly if there is a range of experience and seniority in experts or it is a large group), but are not always required;
- the agreed statement should be drafted during the session, deal with facts first, and have ability for witnesses to explain their reasons for a difference in opinion. A table format may be helpful;
- experts would like the ability to communicate with their clients, as they are not always aware of the implications of 'solutions' discussed in caucusing;
- multidisciplinary caucusing may be of assistance to address particular topics;
- there may be a preferred sequence for conferencing so the outcomes of one expert group can inform subsequent sessions;
- experts should not worry about drafting precise wording of conditions – but focus on the concepts for counsel and planners to have input;
- whether the statement should be signed at the end of the conference, or if witnesses should have a couple of days to reflect on the statement before signing.
A report collating the feedback from the workshop sessions is expected to be circulated shortly. It is proposed that best practice guidelines will also be developed, and amendments may also be made to the Environment Court Practice Note 2011.