Court managed expert evidence (CMEE)
What is court managed expert evidence?
In most cases in the Land Court expert witnesses will give evidence. If there is more than one expert in a discipline or area of expertise, the Court will make directions for a meeting of expert witnesses and the preparation of a joint expert report.
In complex cases, or where the court considers that closer supervision of the briefing and conferencing of expert witnesses is necessary, the court may direct the parties to engage in court managed expert evidence (CMEE). Unless otherwise directed, the CMEE process is ‘without prejudice’.
CMEE is conducted by a CMEE convenor, who must be a member or judicial registrar of the court. The role of the CMEE convenor is procedural. The CMEE convenor assists in the court’s management of the evidence of expert witnesses.
How does CMEE start?
The Court will direct CMEE for the case and appoint the CMEE convenor. The CMEE convenor will start the process by meeting with the parties or their representatives in a case management conference.
What is the role of the CMEE convenor?
The CMEE convenor may make directions by consent about briefing the experts, arrangements for the experts to meet, responding to requests by experts for information or instructions and filing joint expert reports. The CMEE convenor may also list the case for review before the president.
The CMEE convenor will not preside at the hearing of the matter unless all parties otherwise consent in writing.
How closely the CMEE convenor supervises the CMEE will depend on:
- the nature of the case
- how actively the parties and the expert witnesses engage in the CMEE
- the resources of the parties.
The CMEE convenor can assist the parties to:
- identify the issues in dispute, if they have not already been identified
- decide which of those issues will require expert witness evidence
- identify which experts should produce joint expert reports and on which issues
- determine the sequence in which meetings of experts should take place
- ensure the expert witnesses have the information they need to fulfil their function
- prepare a consolidated brief to the expert witnesses
- discuss arrangements for providing secretarial and administrative assistance for the expert witnesses in a meeting of experts
- communicate with expert witnesses after they have commenced their meeting of experts
- establish, manage and adjust the timetable for briefing experts, meetings of experts, and joint expert reports
- as joint expert reports are filed, consider whether those reports have consequences for the management of evidence by other expert witnesses
- agree on directions about steps to be taken during the CMEE
- consider proposed reports to the President about the CMEE
- discuss whether there are issues that require further direction from the president.
Working with the experts
If a CMEE convenor chairs a meeting of expert witnesses, the CMEE convenor will not give legal advice but may:
- reality test assumptions and conclusions
- ask for clarification or explanation of a point or comment, to demonstrate that the Court may have a similar difficulty in understanding the expert witnesses’ conclusions
- assist in discussions where the expert witnesses:
- have different levels of experience
- have difficulty in communicating with each other
- show a tendency towards advocacy, rather than independence
- indicate a lack of expert witnesses in the particular discipline
- explain to less experienced expert witnesses how a hearing is conducted and what the Court will expect when the expert witnesses are giving evidence
- explain the process of concurrent evidence
- conduct the meeting in a way that gives all expert witnesses an opportunity to speak and ensures that one expert witness does not dominate the discussion.