Most first procedural orders say almost the same thing about expert evidence: reports shall be exchanged by a stated date, followed by a joint statement, followed by a hearing. That sentence describes a sequence. It does not describe a process, and the gap between a sequence and a process is exactly where confusion, delay, and unnecessary cost creep into cases that otherwise proceed smoothly. This is a practical guide to drafting expert-related directions that do more than schedule dates, directions specific enough to actually shape how the expert process functions, without requiring the tribunal or drafting counsel to engage with the substance of any disputed technical question.
The guidance below is written for whoever is doing the drafting, a tribunal issuing a first case management order, or counsel proposing draft directions for the tribunal's consideration, because the underlying discipline is the same regardless of who holds the pen. Good expert-related directions are specific about process, silent on substance, and tailored to the actual complexity of the dispute rather than borrowed wholesale from the last several matters.
It is worth being clear at the outset about what this guide is not. It is not a set of model clauses to copy verbatim into every order regardless of context, and it is not an argument that longer directions are automatically better directions. The goal is narrower and more useful: a working method for identifying which specific components a given dispute's expert process actually needs, and language patterns that make those components enforceable rather than merely aspirational.
What Standard Directions Typically Get Wrong
The most common failure in standard procedural directions is treating expert evidence as a scheduling problem rather than a process design problem. A direction that sets dates for report exchange, a joint statement, and a hearing has addressed sequencing without addressing any of the substantive questions that actually determine whether the process runs smoothly: what the joint statement needs to contain, how disagreements should be documented, whether and when the tribunal will pose clarifying questions, and how a multi-expert case's dependencies should be sequenced relative to each other.
A second common failure is excessive genericness, directions copied largely unchanged from a template built for an average dispute and applied without adjustment to a case with unusual technical complexity or an unusual number of interdependent experts. This produces directions that are technically complete, every box on a standard checklist has been ticked, while leaving the actual mechanics of the process undefined for the specific complications this particular case will predictably encounter.
A fourth failure, easy to overlook because it looks like thoroughness rather than a gap, is directions that address every stage of the expert process except the joint conference itself, the part of the process most consistently identified as the source of vague, unhelpful outcomes. Standard templates frequently specify exhaustive detail about report exchange dates and formats while leaving the joint conference to a single generic sentence, exactly backward from where the detail would do the most good.
A third, subtler failure is directions that specify obligations without specifying consequences or mechanisms for escalation. A direction requiring a joint statement "addressing areas of agreement and disagreement" without specifying what happens if the resulting statement is too vague to be useful leaves no clear path for a party to raise that problem before it becomes a dispute requiring a full application to resolve.
Each of these three failures shares a common root: they all treat the drafting of expert directions as a lower-stakes task than drafting other parts of a procedural order, worth less careful attention because the consequences of a gap will not surface until much later in the case. That deferred visibility is precisely why the gaps persist across so many matters and so many tribunals, and precisely why closing them requires deliberate attention rather than waiting for the standard template to improve on its own.
The Building Blocks of Effective Expert Directions
Effective directions build in a small number of specific components beyond bare scheduling, each addressing a recurring source of confusion identified across the profession.
A scope and purpose framing early in the expert section, stating plainly what the directions are trying to achieve, orienting the reader before the specific requirements follow, helps every subsequent clause read as purposeful rather than arbitrary. This need not be lengthy, a sentence or two describing the goal of narrowing genuine technical disagreement efficiently is usually sufficient.
This framing sentence does more practical work than its brevity suggests. When a specific requirement later in the directions is ambiguous in application, a plainly stated purpose gives both parties and the tribunal a shared reference point for resolving the ambiguity consistently with the process's actual goal, rather than each side arguing for whichever reading favors their position in isolation.
Report structure requirements specify, at a minimum, that reports include a plain-language summary of the conclusion and its basis before the detailed technical analysis, and that any technical terminology used more than once be defined at first use. This single addition addresses one of the most consistently cited sources of frustration with expert reports without requiring the tribunal to specify anything about report length or technical content.
Joint expert process specifications are the single highest-value addition most standard directions omit. Specifying how many sessions a joint conference should involve, whether counsel may attend, what format the resulting statement should take, and explicitly requiring that disagreements be documented with reasons rather than simply noted as unresolved, closes the gap that produces the vaguest, least useful joint statements.
Sequencing and dependency clauses matter specifically in multi-expert disputes, where one expert's output is another's input. A direction that explicitly identifies which experts depend on which other experts' findings, and sequences instruction and reporting dates accordingly, prevents the downstream compression that otherwise occurs when dependent experts are all instructed on the same generic timetable regardless of their actual sequencing needs.
Drafting this component well requires asking a specific question during the drafting process itself: which expert's output does another expert genuinely need before they can begin substantive analysis. This is often knowable early, even before either expert has been formally instructed, simply from understanding the general shape of the technical issues in dispute, and building the answer directly into the timetable prevents a scramble later when the dependency becomes obvious to everyone only once it has already caused a delay.
A window for tribunal-posed clarifying questions, specified as a defined stage after initial reports are filed rather than left to informal practice, signals genuine engagement with the expert process without requiring the tribunal to take any substantive position, provided the direction frames the window as an opportunity for clarification rather than an invitation to argue the merits.
Format and technology expectations, whether reports should be hyperlinked to exhibits, what file formats are expected, whether physical or purely electronic bundles will be used, are increasingly worth specifying explicitly rather than assuming shared expectations, since practices vary significantly across practitioners and jurisdictions.
Drafting Language That Works
Effective directions favor specific, falsifiable requirements over vague aspirational language. A direction that a joint statement should "clearly identify areas of agreement and disagreement, with the experts' reasons for any disagreement stated in full" is falsifiable, a reader can check whether a resulting statement actually complies. A direction that experts should "endeavor to narrow the issues" is not falsifiable in any meaningful sense, and provides no basis for either party to object if the resulting joint process fails to do so.
Directions also benefit from explicitly separating what is required from what is merely encouraged. A direction that certain report elements, a plain-language summary, defined terminology, are required, while noting that additional visual aids or demonstrative exhibits are encouraged where useful, gives drafting experts and counsel clarity about the non-negotiable baseline versus the areas where professional judgment should govern.
This required-versus-encouraged distinction also protects against a subtle drafting trap: treating every good practice as mandatory produces directions so dense that compliance becomes a box-ticking exercise rather than a genuine improvement in process quality. Reserving mandatory language for the small number of components that matter most, and using encouraging language for genuinely optional enhancements, keeps the mandatory core sharp and enforceable rather than diluted among a long list of equally-weighted requirements.
Building a stated mechanism for raising process concerns, a short paragraph noting that any party may request a further case management conference specifically to address expert process issues, addresses the escalation gap described earlier. This does not commit the tribunal to any particular resolution of a future concern, it simply confirms that a path exists to raise one before it hardens into a larger dispute.
Precision about timing language matters as much as precision about substance. Phrases like "in due course" or "as appropriate" should be replaced wherever possible with specific dates or specific triggering events, since vague timing language is a recurring source of the same kind of disputes that vague substantive language produces, simply shifted from what must be done to when it must happen.
Common Drafting Mistakes to Avoid
Directions that specify too much substantive detail risk crossing from process into an appearance of prejudging technical questions, an outcome worth actively avoiding. A direction specifying that a particular methodology should be used, rather than specifying that the methodology chosen should be explained and justified, crosses this line unnecessarily, and drafters should default toward requiring transparency about a choice rather than mandating the choice itself.
Directions that are internally inconsistent, requiring a joint statement by a date that does not allow adequate time following individual report exchange, or sequencing multiple experts without accounting for genuine dependencies between them, create exactly the kind of downstream confusion these directions are meant to prevent. A careful read-through checking dates against realistic dependencies before directions are finalized catches most of these errors before they cause problems.
A related mistake worth naming specifically is directions silent on what happens if a deadline is missed. Without at least a brief default mechanism, a short extension process triggered by written request rather than a full application, a single missed deadline can escalate into a disproportionate procedural dispute simply because no lighter-weight path exists. Building this default in advance costs a sentence or two and avoids a predictable escalation later.
Directions copied from a previous matter without adjustment for the current case's actual technical complexity are perhaps the single most common mistake, efficient to produce, but calibrated to an average case rather than the one actually in front of the tribunal. A brief, deliberate review asking what this specific dispute's technical shape actually requires, before finalizing directions, catches most of the mismatch this habit produces.
Tailoring Directions to the Case's Actual Complexity
Not every dispute requires the full version of every component described above. A straightforward, single-expert dispute with a narrow, well-defined technical question may need only modest additions to a standard template, a plain-language summary requirement and a brief joint process specification, to capture most of the available benefit. A complex, multi-expert dispute with significant sequencing dependencies justifies the fuller version, detailed dependency clauses, an explicit clarifying-question window, and format specifications addressing what a larger volume of technical exhibits will require to remain navigable.
The practical discipline worth building into any drafting process is asking, explicitly, what this specific case's technical complexity actually requires before defaulting to either a bare-bones template or an unnecessarily elaborate one. Proportionality cuts in both directions, under-specifying a genuinely complex, multi-expert dispute and over-specifying a straightforward one are both real risks worth actively avoiding.
A useful practical heuristic is to scale the level of detail to the number of experts involved and the degree of interdependence between them. A single-expert dispute rarely needs an elaborate sequencing clause, since there is nothing to sequence. A four-expert construction dispute with clear dependencies between delay, quantum, and technical causation experts justifies considerably more drafting attention to sequencing specifically, even if other components remain relatively brief.
A Suggested Checklist for the First Procedural Order
A brief, practical checklist captures most of what effective expert directions require: a stated purpose for the expert evidence process, minimum report structure requirements including a plain-language summary, a specific joint expert process definition covering format and required content, sequencing clauses addressing any genuine dependencies between multiple experts, a defined window for tribunal clarifying questions, format and technology expectations appropriate to the dispute's complexity, and a stated mechanism for raising process concerns before they harden into disputes.
Running through this checklist deliberately, rather than relying on whatever a standard template happens to include, takes relatively little additional drafting time and consistently produces directions that function meaningfully better in practice.
What This Means for Tribunals and Counsel Proposing Directions
For tribunals, the practical implication is that drafting genuinely effective expert directions is less about writing more text and more about writing more deliberately, replacing generic scheduling language with the specific, falsifiable requirements described above, calibrated to the dispute's actual complexity.
For counsel, the implication is to propose specific draft directions addressing these components directly, rather than waiting for a tribunal to specify them unprompted or accepting a generic template without comment. A tribunal is often genuinely receptive to concrete, well-reasoned process proposals, and offering them is usually more effective than raising a general concern that the standard directions feel insufficiently tailored.
For institutions maintaining model procedural orders, the implication is to build the components described here into standard optional language that individual tribunals can adopt selectively, rather than leaving each tribunal to draft bespoke joint-conference and sequencing clauses from scratch for every matter. Lowering the effort required to include well-drafted expert directions makes their consistent use considerably more likely across a full caseload.
Frequently Asked Questions
Should procedural directions ever specify a particular methodology an expert must use? Generally no. Directions should require that a chosen methodology be explained and justified rather than mandating the methodology itself, which keeps the direction on the process side of the line separating case management from substantive engagement.
How much additional time does drafting more detailed expert directions actually require? Modestly more than producing a generic template, but the time is usually recovered many times over in avoided procedural disputes later in the case, making it a genuinely efficient investment rather than an added cost.
Can counsel propose these kinds of directions even if the tribunal has already issued a generic first order? Yes. Raising specific, concrete proposals at a subsequent case management conference, rather than waiting for the tribunal to revise its approach unprompted, is a normal and often well-received way to close this gap mid-case.
What is the single highest-value addition to a standard set of expert directions? A detailed joint expert process specification, covering format, required content, and a requirement that disagreements be documented with full reasons, addresses one of the most consistently cited sources of confusion in expert evidence at relatively low drafting cost.
Should directions specify a default mechanism for missed deadlines? Yes, a brief, lightweight process, such as a short written extension request rather than a formal application, prevents a single missed deadline from escalating into a disproportionate procedural dispute simply because no smaller-scale option exists.
Conclusion
The difference between expert directions that merely schedule dates and expert directions that actually shape how the process functions comes down to specificity, falsifiability, and deliberate tailoring to the case's real complexity. None of the components described here require a tribunal to engage with the substance of any disputed technical question. They require treating the process itself as something worth designing carefully rather than scheduling generically, a distinction that costs little additional drafting effort and consistently prevents the confusion, delay, and cost that vague, generic directions reliably produce. Whoever holds the pen, tribunal or counsel, has more leverage over how smoothly a case's expert evidence unfolds than the modest additional drafting time this approach requires would suggest.
Key Takeaways
● Standard procedural directions often schedule dates without specifying the process components, joint statement requirements, sequencing dependencies, that actually determine whether expert evidence runs smoothly.
● Effective directions favor specific, falsifiable requirements over vague aspirational language, since only falsifiable requirements give parties a clear basis to raise a compliance concern.
● Directions should require transparency about methodology choices rather than mandating a particular methodology, keeping the tribunal squarely on the process side of the line separating case management from substantive engagement.
● Tailoring directions to a case's actual technical complexity, rather than defaulting to either a bare-bones or an unnecessarily elaborate template, is a small additional effort that consistently pays for itself later in the case.
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