Litigation lawyers in England are bracing themselves for a revolution in how expert evidence is given in technically complex trials. A recent edict from the High Court has paved the way for trying out a technique called hot-tubbing.
The Australian import, officially known as concurrent evidence, involves scrapping the traditional routine of evidence-in-chief followed by cross examination. Instead experts sit together in the witness box, so they can be interviewed by the judge as well as the parties’ barristers, at the same time.
Supporters say that it will slash litigation costs by leading to quicker results. But others fear that it could cut corners in the name of economic expediency resulting in a degrading of justice. Some also suggest that barristers and other advocates will resist moves away from traditional evidence-giving because hot-tubbing can shift the spotlight from them to the judge or arbitrator.
The technique has gained currency in the past decade in international arbitration, especially in Australia, and was given the nod by the Technology and Construction Court (TCC) in its most recent guidelines. Now, construction experts believe that officials have targeted a pilot trial for hot-tubbing, probably at the TCC in Manchester.
According to the court’s latest guide, pretrial reviews, which are fixed four to six weeks before the start of complex trials, should establish ground rules for expert evidence. Processes can vary from the traditional alternating of experts giving evidence to a routine where the parties alternate experts in particular disciplines or those dealing with specific issues. But it is hot-tubbing, which can be conducted only with the consent of both parties, that is seen as most revolutionary.
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The TCC guidelines state that it is “most useful where there are a large number of items to be dealt with and the procedure allows the court to have the evidence on each item dealt with on the same occasion rather than having the evidence divided with the inability to have each expert’s views expressed clearly. Frequently, it allows the extent of agreement and reason for disagreement to be seen more clearly.”
Hot-tubbing proponents argue that it provides a faster and more efficient method of establishing the truth in a technical dispute and ultimately leads to enhanced justice. “It enables the judge or arbitrator to see the debate directly,” says Paul Barry, a construction expert and managing director of Navigant Consulting.
Barry, a quantity surveyor who specialises in international disputes over the costs of building and development projects, has been in “hot tubs” several times in arbitration cases. He says that in traditional circumstances, in a complex dispute, an expert could be in the witness box for up to four days. The other side’s expert would then be in the box for a similar length of time.
“For a judge or arbitrator to hold all that in his mind is difficult,” Barry says. “So it helps to have a system that focuses more on one or two specific issues. In the hot-tubbing environment, rather than just responding to questions, you have got to say: I’m right and this guy isn’t. You’ve got to stand up for yourself and therefore it involves a completely different mindset.”
Expert witnesses in the hot tub are under increased pressure to advocate and justify their opinions. Barry says: “That means that rather than being asked a specific question, they could be asked, ‘Why should we believe you and not the guy sitting next to you?’ ”
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The process gives the judge an opportunity to hear a concurrent debate between experts and take a view in complex cases of the strengths and weaknesses. “That gives the judge much more visibility,” Barry says. “Barristers may not necessarily like it because the evidence process is not under their control in the same way.”
Nonetheless, the technique has won support. John Marrin, a specialist construction silk at Keating Chambers, is a supporter. But he says: “There might be some resistance, but it would be surprising if there were much because it is in the interest of all litigation lawyers to ensure that costs are kept down and delays avoided. And that is precisely what this procedure is intended to do.”
Still, he sounds a warning note: “You get a possibly superior result by using the traditional technique. Any form of cutting corners runs the risk of elements of rough justice creeping in. One always regrets that, but the thinking is that it is worthwhile accepting a little bit of rough justice if one can achieve a material saving in time and costs.”
Specialist litigation solicitors are warming to the process: some maintain that requiring experts to meet without prejudice to narrow and agree issues has failed. Tim Raper, a construction disputes partner at Speechly Bircham, says: “Hot-tubbing has the potential to save the parties time, resources and cost.
“It should also ensure that the tribunal itself is better informed about the technical aspects of the dispute which, in turn, should inform its decision.”
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The idea of experts giving concurrent evidence could extend to other fields, he believes. “The hot-tubbing process should not necessarily be limited to construction related litigation. It’s a process that can benefit any litigation that is driven by complex expert evidence — for example IT or trade practices related litigation — as demonstrated in other jurisdictions.”