The use of experts in court proceedings has increased dramatically since John Smeaton, a civil engineer, was called to testify in court for a case related to the silting-up of the harbour at Wells-Next-The-Sea in Norfolk in 1782.
Expert testimony in today’s courts is now commonplace in many cases where issues concern “technical” matters that fall outside the court’s sphere of knowledge. It follows that expert evidence can therefore be complicated.
Traditionally, when expert evidence is given, each party will call one or more expert witnesses whose evidence is intended to give guidance to the judge help him or her to understand technical submissions and arguments submitted in pursuance of a particular party’s case. Cross-examination is the traditional method for
testing that evidence.
This methodology has given rise to a number of concerns. Examining Counsel can take individual experts through tedious details of their reports and assumptions. Huge amounts of court time can then be spent on cross-examination of each expert in turn.
For judges and tribunals who are not experts in a particular subject matter, technical issues can become submerged in a labyrinth of detail. They can also be mind-numbingly dull. More importantly, expert evidence can be confusing and often contradictory as a result of the role of
advocates who often seek to undermine the credibility of their opponent’s expert and his or her testimony.
The examination and cross-examination process can also leave experts feeling frustrated. They will often be asked questions that they feel would lead to misunderstanding of their evidence. Crossexamination, by its very nature, can leave experts feeling that their skills knowledge and even professional integrity have not been bestowed with an appropriate level of respect.
Distinguished and respectable experts can be subjected to cross-examination that is wholly designed to undermine their testimony, rather than assist the court to understand a particular point which may be crucial to the outcome of the case.
Many experts have probably come away from courts feeling contemptuous of the adversarial examination process. In fact, they may be disheartened to the extent they may no longer wish to be involved in undertaking this hugely important role. This could seriously damage the effectiveness of the courts in dealing with technical disputes.
In short, the traditional method for examining and testing expert evidence in court does not necessarily allow competing opinions of experts to be properly assessed. The fact that experts are supposed to help the court is undermined by an approach that is routinely used to discredit experts’ views, or force them into a position where they appear to concur with something that they really do not regard as accurate. But what alternative is there?
It is true that expert evidence can be technical and difficult to understand properly. Hot-tubbing offers the potential for expert evidence to be submitted in a way that is not tedious for everyone in court, and it better at helping a judge to grasp issues he or she needs to comprehend in order to make an informed judgment. Hot-tubbing also enables each expert to focus on the real issues, and not be distracted by the often brutal tactics of Barristers.
The hot-tubbing technique diminishes the risk of lawyers and the judge misunderstanding what the experts are saying. It enables evidence from a number of experts to be given concurrently. This means there is greater input and assistance from the experts who are able to spend time helping the court to understand technical issues rather than defending their individual professional integrity. In response to the argument that cross-examination is essential to test the credibility of an expert, there is the counter-argument that a discussion between two experts, moderated by the judge, will be more effective in determining which witness is the more convincing expert.
To date, the use of hot-tubbing by individual courts has varied slightly depending on the approach taken by the relevant judge. A typical approach, which is drawn from the author’s experiences of observing the Australian civil system, is as follows:
• After experts for both sides have prepared their reports they will meet, without lawyers present, to prepare a joint report on the matters about which they agree, and those on which they disagree.
• Each expert will provide reasons as to why he or she disagrees. It is not impossible that this process will occasionally result in the experts agreeing on everything that each has said in their respective reports. On most occasions, however, there is likely to be a number of differences of opinion between the experts.
• The joint expert reports enable counsel to be aware of issues that are contentious between the experts before the trial. This allows crossexamination to be more focussed.
• In court, the experts are called to give evidence together. The court room will be set up so that the experts can sit together with convenient access to their reference materials.
• The judge will normally explain the procedure that he or she requires the experts to follow and, if necessary, how the procedure differs from any previous experience they may have had in giving expert testimony.
• Each expert will be invited in turn by the judge to identify and explain the principal issues in their own words. Thereafter, each expert will be invited to the evidence provided by the other expert(s).
• The experts may ask each other questions about what has been said or left unsaid. The judge acts as moderator, or chair, in these discussions.
• Counsel is then invited to identify specific topics on which they will cross-examine an expert. Each topic is then addressed in turn. During this procedure, opposing experts are invited to comment on the issue being addressed. If the opposing counsel does not understand the answer to a question, he or she can turn to their own expert and ask that expert to comment on the other’s answer.
A real benefit of hot-tubbing is that it reduces the chances of an expert “muddying the waters”. Also, it prevents counsel from unnecessarily digressing. In other words, each expert is aware that the other expert can quickly expose a wrong answer and support a correct one. So the submission of expert evidence gets directly to the salient point.
Sometimes different views expressed by experts can be substantial, but the point is the judge will see what they actually agree on, and what it is they disagree on.
The hot-tubbing process allows experts to ask questions of each other and supplement the other’s answers. Hot-tubbing encourages experts to co-operate with each other and understand their role is to assist the court, rather than simply support the case for the instructing party, who is paying their fees.
The big difference with hot-tubbing is that all the experts are together in the witness box at the same time, answering the same questions on the same basis. It represents a revolutionary change from traditional cross-examination, and it actually works to help judges, and lawyers, understand matters that fall outside their normal sphere of knowledge and skill.
For experts, the process of hot-tubbing enables them to explain specialised subject matter to the judge, and put their points across in a more effective way.
Evidence submitted through the hot-tubbing process can greatly reduce the hearing time. It is efficient and it identifies the important issues proficiently. The judge is able to speak directly to experts and invite them to explain matters in a way he or she will understand. At the same time, the other expert is at hand to provide an alternative view or support the response of the expert being questioned.
No system is perfect, and some lawyers will find flaws in the hot-tubbing process. The fact is, litigation is still costly, often inordinately long and nearly always stressful. Hot-tubbing will not resolve all the problems associated with the litigation process, but it looks to be a better system for submitting expert evidence than conventional examination and cross-examination. At the end of the day, it will ensure experts remain an important part of the judicial process.
