Hot-tub: lessons from Australia

by Antonia Croke (London) and Louise Mallon (Sydney)

Concurrent expert evidence, or "hot tubbing", became part of English court procedure in April 2013 as a result of the Jackson reforms. It represents a substantial departure from the traditional approach to expert evidence and will impact on the way practitioners choose their experts and prepare them for trial. It was recommended by Lord Justice Jackson, influenced in part by how well it was working in the Australian courts, where it was introduced over 10 years ago. Here we look at the new rules and then draw on our Australian experience to provide guidance and tips on how to maximise the benefits of this new procedure.

Hot-tubbing in the English courts

The new provisions came into force on 1 April 2013 and can be found in PD35 11.1. They permit the court to direct that some or all of the experts give their evidence concurrently at any stage in the proceedings.

Hot-tubbing is intended to focus on the areas of disagreement between the experts, as identified in the experts' joint statement. Where it is ordered, the procedure envisaged is as follows. Experts prepare and exchange their written reports in the normal way and meet with their opposite number to discuss their reports and prepare the joint statement, which identifies where they agree and disagree. The areas of disagreement identified in the joint statement are then used to form the basis of the agenda for the "hot-tub", which is prepared and agreed by the parties. This is provided to the judge in advance of the trial. The experts are then sworn in together at the trial and the judge initiates the discussion by asking each expert for their views. There will also be an opportunity for the experts to present and answer questions of each other. Counsel may then ask questions of each of the experts. At the end, the judge will summarise the experts' different positions on the issues and ask them to confirm or correct that summary.

The Australian experience

In Australia the procedure for concurrent evidence is similar to that envisaged in the English courts: preparation and exchange of reports, a joint meeting of the experts after which a joint report is produced, and then an agenda prepared for the concurrent evidence session based on the areas of disagreement. Individual judges may approach concurrent evidence in different ways. Some judges are quite interventionist, others less so. However, a fundamental difference between the English and Australian procedures is that, in Australian civil cases it is most likely that the experts will give their evidence concurrently. We therefore prepare the case on the basis that there will be an order for concurrent expert evidence.

When concurrent evidence was first introduced as the norm in New South Wales there was some scepticism within the legal profession as to how successful it would be. However, while there are pros and cons to having experts give their evidence concurrently, the general view now is that it is a superior technique for getting to the heart of the issues in dispute and ensuring that each expert has an equal opportunity to give their evidence on those issues. The key to ensuring that you maximise the potential benefits is good preparation.

Preparing your expert

Preparation for concurrent evidence starts early in the proceedings when evidence is being collected and the experts are being retained. The lawyers need be confident that the expert selected is one who will be comfortable with this format of presenting evidence. The experts need to know what lies ahead. While they may be experienced expert witnesses, they may not be familiar with the concurrent evidence process.

The importance of the joint conference of experts is heightened, as the joint report provides the road map for the concurrent evidence at trial. The strengths and weaknesses of the parties' cases are often identified in the joint report: a gaping hole in a party's case that is revealed in the joint report is very difficult to patch up in the concurrent evidence. It is therefore crucial to ensure that your expert is fully prepared prior to the joint conference. Likewise, you will need to meet with your expert afterwards so that he can report on the dynamics of the joint conference and help to identify what needs to be followed up in the concurrent evidence.

Spend time preparing the expert before the concurrent evidence. The concurrent evidence process should be described to them so that they know:

• how the courtroom will be set up;
• how the questioning will proceed;
• who is allowed to ask questions; and
• that they will be under cross-examination during the whole of the concurrent evidence so they will not be able to discuss their evidence with anyone (including the lawyers) during breaks.

Preparation of counsel

Where Counsel is not familiar with concurrent evidence they will need to consider how they will approach it. Although it becomes easier with experience, advocates need to be aware that:

• they need to know the subject;
• they only have one go with all the experts;
• they may have limited time so they have to be disciplined;
• it helps to know the experts' personalities (e.g. who is likely to dominate the discussion); and
• they will need a strategy to ensure that your expert's answers are given appropriate weight (e.g. avoid your expert being the last of the experts to answer every question in case his/her answer is lost).

Logistics

The fact that more than one expert is giving evidence at the same time presents logistical issues for the court. There will be housekeeping that needs to be attended to, such as:

• negotiating with the other side so that the concurrent evidence takes place on a day and time that suits all experts and the court;
• where the experts will sit in the courtroom;
• microphones (some judges prefer to have only one microphone that is handed to the expert who is speaking);
• identification of the experts for the judge (large name cards to put in front of each expert are recommended); and
• video-link facilities for any experts who cannot attend in person.

The hearing

In our experience judges do not adopt a uniform approach to concurrent evidence sessions. Some leap at the opportunity to set the scene and to ask questions "in chief" leaving cross-examination to Counsel. Some still want Counsel to lead. It is therefore important to try and agree on the process with the other side and the judge beforehand.

Experts who appear to genuinely want to assist the court are revealed when they are in the same room at the same time as those who might be biased, intransigent, ignorant, overbearing or loud.

Advantages

• Experts who are addressing a particular issue give their evidence in one place at one time, which significantly reduces court time and inconvenience to the experts who might otherwise be on-call for court for weeks.
• The parties have to agree on a designated day and time for the concurrent evidence to take place, taking into account each expert's commitments and availabilities.
• The experts are asked the same questions on the basis of the same facts that have been elicited at that stage of the hearing.
• The judge may limit the time available for the concurrent evidence session and allocate limited question time for each party.
• The experts are more inclined to give unbiased and reasonable answers if they are surrounded by their peers, and if they don't they run the risk of being corrected or challenged in front of everyone in the court.
• The experts feel more comfortable in a collegiate environment, rather than going head-to-head with a barrister who they fear is only trying to trick or bully them.
• If lawyers have not done their preparation it will show.
• There is one tranche of transcript of the expert evidence to review on that subject, rather than disparate tranches at different stages of the hearing.

Disadvantages

• It can be very difficult to get numerous witnesses in one place at one time.
• Limited availabilities of witnesses of fact and experts can mean that the factual evidence may have to be interposed before all of the lay evidence is taken, which is far from ideal when the factual evidence is relevant to the expert opinion.
• Not all judges approach the process in the same way. Some are reluctant to adopt the chair, leaving the questioning to the advocates.
• If the judge is too interventionist in the chair then there may not be sufficient room for the advocate to test the opinions of the other side's expert, especially on credit.
• Parties do not have access to their experts during breaks in the concurrent evidence. This means they cannot clarify any issues that might arise and which may not have been anticipated in conference beforehand.
• Some advocates may try to cross-examine their own experts.
• Lawyers who don't approve of the process can become impediments to all of the housekeeping that is required, and this can be extremely frustrating and costly.
• The necessary pre-trial preparation adds to the pre-trial costs which might otherwise not have been incurred.

In our experience Australian courts have found the concurrent evidence process of significant benefit. It is here to stay.

Conclusion

Whether hot-tubbing becomes a key feature of English litigation will depend on how enthusiastically the courts embrace it. Judges who have a good experience are likely to use it regularly and spread the word. Likewise, bad experiences may lead to a general reluctance to use this new procedure. However, if the Australian experience is anything to go by, any sceptics will soon be persuaded of the merits of the process. Experience from the pilot which was run in the TCC and Mercantile Court (and was based on party consent, so the number of test cases is limited) showed that all the parties agreed that there were clear benefits from hot-tubbing. In particular it was more efficient, as it was easier to present the evidence and to assess it, and the focus on the issues and areas of disagreement prior to trial meant that time was saved at trial and it was easier for the court to compare contrasting evidence. However, concerns were raised as to whether it would in fact reduce costs and in respect of the additional reading time required of the Judge (as the agenda and relevant documents would need to be provided well before the trial). The loss of control by counsel and the additional emphasis the process placed on the character, confidence and persuasiveness of the expert were also issues of concern.

The practice of hot-tubbing is gaining momentum in arbitration proceedings. The Queen Mary 2012 survey on international arbitration practice found that although 60 per cent of people had experienced it, it was not that commonly used. However, that may well change as the majority thought it should be used more often as it is an effective means of narrowing the issues between the experts.

While its popularity in the English courts remains to be seen, it is clear that the use of concurrent evidence represents a significant change in approach to expert evidence. Practitioners and experts need to be prepared for its use.

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