Insights and inspiration
What Do You Call a Collection of Experts?
17 September 2015
Some people entertain themselves by trying to remember or even invent collective nouns. As we know some of those collective nouns are weird, like "a murder of crows". Some are boring. What do you call a collection of experts?
In the Courts, these are sometimes collectivised as a hot tub.
In general principle, in the Family Court, expert evidence is in a different category to that of ordinary witnesses because experts are the only people allowed to give evidence by way of opinion. Therefore they have a special status but can cost a lot of money.
Trials became protracted with competing experts, and some experts acquired reputations as being guns for hire, rather than truly independent experts. Courts have now introduced a rule that expert evidence has to be given by a single expert appointed jointly by the parties, with the approval of the Court.
Therefore, if the case throws up an issue demanding expert opinion, such as valuing companies or complex financial arrangements, then ordinarily that opinion is obtained from a single jointly appointed expert and all instructions and commincations between the parties and their expert are on the record and accessible to all.
However, in very limited circumstances the Court will grant permission to each party to introduce an adversarial expert, that is to say, that party's own expert. This is usually reserved for complex cases and the exceptions are strictly spelled out.
A recent case in the Family Court in Melbourne threw up two issues relating to the experts. First, the trial judge had earlier given permission for the appointment not only of an independent single expert but adversarial experts so there were going to be three. How was the Court's time in working out which expert to accept, to be used? What the Trial Judge required was that after each expert had delivered his expert report, the experts would be required to get together themselves in what the judge referred to as a "conclave between the experts". This is what I have elsewhere seen referred to as a hot tub. The experts get together to try to work out where one expert raises a problem whether the other can resolve it, to try to narrow the issues between them so that at the trial the lawyers can cross examine the experts not over days and days and in unnecessary areas but in a very directed way and related only to the issues that the conclave remains unable to resolve. That must be a victory for common sense.
Second, the wife in this case had real doubts about whether she was being told the truth by the husband and the commerical entities involved with him, and of course any conclusions that any of the experts reached was contingent upon proper information being available to the experts. The judge gave the wife's lawyers permission to ask no more than 100 questions in writing that required answers, to be answered on oath. The wife was also given permission to issue further subpoenas so that she could be properly satisfied.
Finally, the judge also made the very cogent comment that "it is desirable for the wife to be as fully informed as she can possibly be before trial, but not at any cost". That also seems an eminently sensible approach.
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