Recently, I settled a multi-party,
multi-action motor vehicle accident claim at the third pre-trial,
which occurred on the eve of trial.
At the second pre-trial, some months earlier,
the court had ordered a "hot tub" involving the four
Rule 20.05(2)(k) of the Rules of Civil
Procedure provides that, where a summary judgment has been
refused, or granted only in part, the court may give directions,
including that any experts meet, on a without prejudice basis, to
identify the issues on which the experts agree and disagree, to
attempt to clarify and resolve any issues and to prepare a joint
statement, setting out the areas of agreement and disagreement and
the reasons for it. The court may order such a meeting if, in the
opinion of the court, the benefits that may be achieved are
proportionate to the amounts involved or the importance of the
issues involved in the case and there is a reasonable prospect for
agreement upon some or all of the issues or the rationale for
opposing expert opinions is unknown and clarification would
By virtue of Rule 50.07, if a proceeding is
not settled at a pre-trial, the presiding judge may make such
order, as the judge considers advisable with respect to the conduct
of the proceeding, including a meeting of the type just described
Pre-trial judges are now ordering (or
suggesting) these meetings or "hot tubs" on a more
frequent basis. My experience involved engineers but it could
easily have involved damages experts in another setting. In
particular, often times, there are huge differences between future
care cost experts and that could, as well, be the subject matter of
one of these meetings.
With this background, I offer the following
These meetings are only to be ordered when
they make sense on the basis of proportionality. The fact is that
such meetings are expensive as, in the case that I was involved in,
the four experts met for the entire day and subsequent exchanges
between them occurred before they were able to issue a joint
statement. Clients involved in smaller claims may not wish to go
down this road and counsel should be prepared to voice that concern
when the pre-trial judge raises the idea of a "hot
The issue of expense is, of course, increased
if counsel are to be involved in the meeting. In our case, counsel
allowed the engineers to meet alone, although things may have
occurred differently with different experts.
As mentioned, these meetings, and the product
of these meetings, are without prejudice. However, the reality here
is that agreements achieved, or gaps in opinions that are
identified, will have real world results. An expert who has agreed
to a point in a "hot tub" setting as being correct is
unlikely to take a different position when in the witness box.
In every case, counsel should meet and brief
their expert as they would for trial.
As you can appreciate, the skill set required
of an expert for this task may be different than the skill set
required to review evidence and prepare an opinion, present that
opinion at trial and be subject to cross-examination. In a
"hot tub" setting, the expert will require not only a
grasp of the underlying substance but, as well, a strong
personality, people skills and even negotiation skills. Not every
expert will be well suited to this process.
In my recent experience, certain gaps in the
opinions of the opposing engineers were identified during this
process. I feared that the "hot tubbing" process would
simply allow the opposing experts to back-fill their opinions to
somehow fill those gaps by delivering supplementary opinions. That
occurred to some extent but, in the end, I believe that the gaps
identified during this process allowed the claims to settle. So it
Choosing an expert is an important task in
the life of a lawsuit. Not every expert is a professional witness.
Now counsel should bear in mind that their expert, whether a
liability expert or a damages expert, may be required to
participate in a meeting of experts following the pre-trial and
before trial. The skill set required to succeed in that arena
should be considered when experts are being retained.
Counsel, with their client's input,
should be prepared, at the pretrial, to address the issue of
whether a hot tub makes economic sense in their particular case if
the pretrial judge raises the question.
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