Is Your Expert Witness “Hot Tubbing” in the Courtroom?
Last Fall, the National Law Review reported on the concept of “Hot Tubbing” in U.S. Courts. They define the practice of presenting concurrent expert evidence, or “Hot Tubbing” as asking experts in the case to “all to testify and quarrel with one another at the same time”. The back and forth testimony between experts, takes place while they are under oath, and often includes the Judge getting in on the discussion as well.
U.S. District Court Judge Jack Zouhary tried out the practice of “Hot Tubbing” in his courtroom and liked the exchange between the two experts. He stated, “[I]t was great fun for me (perhaps because I’m a former trial lawyer) to be engaged directly with the key testimony that I needed to rule on”.
The presentation of concurrent expert evidence, was pioneered in Australia, and is now common place in courts in that country, though the practice is virtually unheard of among judges in the U.S. In Australia, the practice has been shown to not only save time and money, but also “experience shows that experts who are opposed in their views may, surprisingly, agree under pressure when they (two or more) are giving evidence together in court and the judge is questioning them directly” according to Australian Senior Counsel Ross McKeand. Many judges down-under, agree, according to Judge Zouhary, who cites that the Aussie judges “felt it increased objectivity and quality of expert evidence, found it made comparisons easier, and enhanced the judge’s ability to fulfill the court’s role of fact-finding”.
There have been some concerns raised about employing this type of evidence gathering in American courts. While it seems best suited for Daubert challenges or Markman patent hearings, there are some who question bringing such a format into all types of courts. International law firm Jones Day opined in an article, that the practice “should be used in very limited, non-jury contexts where the technical issues are so complex that a ‘discussion’ by the experts is essential for a rudimentary understanding of the dispute…”. Judge Zouhary doesn’t necessarily agree and says “throwing everybody in the ‘hot tub’ at the same time allows the court, counsel, and experts to confront or, ‘splash,’ each other directly, resulting in a better chance of reaching a correct conclusion.”
Only time will tell if the practice of “hot tubbing” finds favor here in the U.S. and in the meantime, our counterparts in the southern hemisphere will continue to turn up the heat in their courtrooms. Read more about the practice in the full article in the National Law Review.