Weekly Blog 8 - Hot tubbing

Over the past several years, a highly debatable topic has risen on how an expert witness presents their report in court, known as concurrent evidence or 'hot tubbing', both experts (sometimes more) get together before the trial to discuss each other's report on areas they agree and disagree. This method of giving evidence does have its merits, however, others have criticised its usefulness.

After researching the topic at hand, in my opinion the most notable benefit concurrent evidence provides is drastically reducing court hearings which is supported by multiple professionals Croke (2013), Federal Court of Australia (2013) and Korda Mentha (2013). By creating a joint statement, this allows the court to bypass all the unnecessary time cross examining matters that they would agree on and focus more on the areas of difference from the reports (Croke, 2013) because on most occasions the number of differences only comes down to a couple points or points of principle in their expertise, as stated by the Federal Court of Australia (2013), thus using the courts time effectively and efficiently.

On the other hand, hot tubbing has seen some issues in its technique, a major one being that an inexperienced or passive experts can be dominated by another, this may result in the more "persuasive, confident or assertive expert winning the judge’s mind (Federal Court of Australia, 2013)", rendering the other expert report irrelevant no matter how good or factual it may be. Another small but important drawback to this process is that it is very difficult to find a time where both or all experts are available to discuss their reports (Korda Mentha, 2013), unlike the rare case of, Strong Wise Ltd v Esso Australia Resources Ltd, where there were eight expert witnesses together at one time.

In conclusion, I think that hot tubbing is a very beneficial alternative method in presenting your report, however, there are conditions that must be met before it can proceed.

Relevant links

Strong Wise Ltd v Esso Australia Resources Ltd
(2010) 185 FCR 149 at 175-176 [93]-[97]; [2010] FCA 240

Concurrent Evidence: New methods with experts
http://www.judcom.nsw.gov.au/publications/education-dvds/copy_of_education-dvd

References

Croke, A, Mallon, L. (2013). Hot-tub: lessons from Australia. Retrieved 2 May, 2015 from
                https://www.ashurst.com/publication.aspx?id_Content=9604

Federal Court of Australia. (2013). Using the "Hot Tub. Retrieved 2 May, 2015 from
                http://www.citewrite.qut.edu.au/cite/qutcite.jsp#apa-repts-corp

Korda Mentha. (2013). Some like it hot!. Retrieved 2 May, 2015 from
                http://www.kordamentha.com/docs/for-publications/issue-13-01-some-like-it-hot