Hot-Tubbing ' The Experts Friend?

• Published date: 16 February 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: HKA
• Author: Mr Peter Caillard

Concurrent Expert Evidence (CEE), sometimes referred to as witness conferencing, but colloquially known as 'hot-tubbing', is the practice whereby two or more experts at a hearing give their evidence concurrently, thus enabling simultaneous questioning and discussion on the key issues.

With hot-tubbing becoming increasingly common in dispute resolution, HKA's Peter Caillard shares some reflections from a practising expert's viewpoint, and asks: Is Hot-Tubbing the Expert's Friend?

Context

There is often a battle between opposing legal teams (who seek the best outcome for their respective clients) and the decision maker (whose objective is to arrive at a good decision). Decision makers - be they judges, sole arbitrators or arbitral panels - will wish to compress the experts into narrowing the issues. Hot-tubbing contributes towards this process and should be seen as part of a continuum which includes preparing reports, meetings of experts, presentations, cross-examination, and hot-tubbing. However, legal teams often fear a loss of control in a decision-maker led hot-tubbing session, and for this reason its use remains controversial. All of this can be seen in the context of a struggle for control of the agenda between legal teams. The Experts and their opinions are at the centre of this struggle.

Background

Hot-tubbing had its origins in Australia in the 1970s. Its intention was to facilitate a discussion chaired by the decision-maker which encouraged cooperation between the experts towards agreement on key issues. Since then, its use has spread worldwide. In the UK, the Civil Procedural Rules Part 35 provide guidance for conducting the procedure.

The process can take varying forms in different jurisdictions. It can be used as an alternative to conventional cross-examination, or in addition to it. Questions may be put by each party's counsel, the decision-maker, or more commonly, both. The process extends naturally from the preparation of a joint statement whereby opposing experts have already discussed issues and recorded acknowledged areas of agreement and disagreement. Indeed, the joint statement is typically employed as the agenda for this part of the proceedings.

Hot-tubbing is usually led by the decision-maker and this helps reinforce that the experts' paramount duty is to the decision-maker, not their client.

Benefits

With conventional cross-examination, experts can sometimes feel frustrated should counsel adopt an aggressive line of questioning, an...