There is a point in many expert appointments when the dynamics change considerably. Until then, the expert has largely worked within the environment created by the party instructing them. They have received the instructions, considered the documents, undertaken their investigation, prepared their report and, following exchange, considered the report of the opposing expert. Then comes the experts’ meeting and the preparation of the joint statement.
In my view, this can be one of the most revealing stages of the entire expert process.
The purpose of an experts’ meeting is not to negotiate a settlement between two professional positions. Nor is it an opportunity for each expert simply to defend their report and emerge with every original conclusion intact. The purpose is to identify those matters upon which the experts agree, those upon which they disagree and, importantly, the reasons for the remaining disagreement. Properly approached, it should narrow the issues requiring determination and provide the Court or Tribunal with a much clearer understanding of where the genuine technical differences lie.
That sounds straightforward. In practice, it can be considerably more difficult. By the time experts meet, each may have spent months analysing the dispute and committing their conclusions to a signed report. Their respective positions are known not only to one another but to the parties, solicitors and counsel. Considerable time and cost may have been invested in advancing cases which rely, at least in part, upon those opinions. Against that background, acknowledging that the opposing expert has made a valid point, agreeing that an assumption was incorrect or modifying an opinion can feel far more significant than it ought to.
Yet that is precisely where independence matters.
The experts’ meeting should provide an opportunity to test rather than simply defend the opinions previously expressed. The opposing expert may identify a document that has been overlooked, expose an assumption that cannot be sustained or offer an alternative methodology which, on reflection, is more appropriate. Equally, discussion may reinforce the original analysis. The important point is that the expert approaches the process genuinely prepared for either outcome.
An agreement reached between experts should not be regarded as a concession made by one party to another. It is an expression of professional opinion. That distinction is fundamental. If, following proper discussion, two experts conclude that a matter is no longer genuinely in dispute, the fact that one of them previously expressed a different opinion should not prevent them recording the agreement. Their responsibility is not to preserve the litigation position with which they entered the meeting; it is to state their current independent professional opinion.
The language we use around this process can itself be revealing. Experts sometimes speak of having “conceded” a point to the other side. I am not convinced that is a particularly helpful way of viewing it. A concession belongs naturally to negotiation and advocacy. If an expert changes their opinion because further analysis or professional discussion demonstrates that another conclusion is preferable, they have not given something away. They have reconsidered their opinion in light of additional information. That is an entirely proper part of expert practice.
There is, of course, an important distinction between changing an opinion because professional analysis justifies it and compromising an opinion simply to achieve agreement. Experts are not required to meet somewhere in the middle. If two independent experts genuinely disagree after proper consideration of the evidence, that disagreement should remain and the reasons for it should be clearly articulated. A joint statement in which substantial disagreement remains can be every bit as useful as one containing extensive agreement, provided it allows the decision-maker to understand precisely why the experts differ.
This is where the quality of the joint statement becomes particularly important. A statement which merely records “Expert A agrees” and “Expert B disagrees” provides comparatively little assistance. The real value lies in identifying the reason for the disagreement. Are different factual assumptions being adopted? Are the experts interpreting the same records differently? Is there a genuine difference in professional methodology? Does the disagreement actually depend upon a matter of law or fact that the experts themselves cannot determine? Once that is identified, an apparently substantial technical disagreement can sometimes become much narrower.
That is particularly important in quantum disputes. Two Quantity Surveying experts may present materially different valuations, but the difference between them may not arise from valuation expertise at all. One may have assumed that a particular variation was instructed while the other has proceeded on the basis that it was not. One may have included costs dependent upon a disputed causation issue. One may have adopted a different factual assumption concerning the scope of work undertaken. The joint process can expose those differences and enable the experts to say, in effect, if the Tribunal determines the underlying issue in one way, the valuation consequence is X; if it determines it another way, the consequence is Y.
That can be immensely valuable to the decision-maker. Instead of being presented with two headline figures separated by a substantial sum and being asked to choose between them, the Court or Tribunal can see what actually creates the difference. Some issues may genuinely concern expert opinion. Others may disappear once a particular factual or legal question has been determined.
Having also considered expert evidence from the perspective of an adjudicator, I find that distinction particularly important. A decision-maker is assisted far more by understanding why experts disagree than by simply being told that they do. Where competing opinions can be reduced to identifiable assumptions, methodologies or factual dependencies, it becomes possible to engage properly with the expert evidence rather than treating the exercise as a choice between two competing conclusions.
There is another dimension to the joint process which deserves consideration: the relationship between the expert and the instructing legal team. Those instructing an expert understandably have a legitimate interest in ensuring that the expert understands the issues to be addressed and is properly prepared for the discussion. However, the experts’ meeting is not an extension of the parties’ advocacy. The opinions expressed and agreements reached must remain those of the experts themselves.
That boundary can become particularly important when the joint statement is being prepared. An expert may return from a meeting having reached agreements which are unwelcome to the party that instructed them. The temptation to revisit the wording because an agreement creates difficulty for the case must be resisted if what has been recorded accurately reflects the expert’s professional opinion. The joint statement is not the parties’ document. It is the experts’ document.
This does not mean that experts should be careless about what they agree. Quite the opposite. The joint statement can become one of the most important expert documents in the proceedings and every agreement, disagreement and reason should be considered carefully. Experts should ensure that the wording accurately records their opinion and does not inadvertently suggest agreement on something that remains disputed. Independence does not mean casual concession. It means exercising professional judgment without regard to whether the resulting opinion assists or damages the case of the party responsible for the expert’s fees.
The process also provides a practical test of something I considered earlier in this series: the willingness to change an opinion. It is relatively easy to say in principle that an Expert Witness should remain open-minded. It can be considerably harder to apply that principle after reports have been exchanged and another expert is sitting across the table explaining why they believe the analysis is wrong. That is precisely the moment when intellectual independence matters most.
The strongest experts, in my experience, do not approach the joint meeting asking themselves how much of their report they can preserve. They approach it asking which issues genuinely remain capable of professional disagreement after both positions have been properly explored. Sometimes the answer will be most of them. Sometimes it will be surprisingly few. Neither outcome determines whether the expert has performed their role properly.
Ultimately, the success of an experts’ meeting should not be measured by how much an expert agrees or how firmly they maintain their original position. It should be measured by whether the process has exposed the real areas of professional disagreement and provided the decision-maker with a clearer route through the expert evidence.
An expert who enters the meeting determined never to move may leave with their original report intact. I am less certain that they leave with their independence demonstrated.
For me, that is why the joint statement is so important. It does not simply record what two experts think. It reveals how they behave when their opinions are genuinely tested.
I accept appointments as an Expert Witness and Single Joint Expert in relation to quantum, valuation and construction claims, together with professional negligence claims involving Quantity Surveyors, Contract Administrators and Employer’s Agents.