United States: Room In American Courts For An Australian Hot Tub?

An evidentiary practice, novel to United States courts, has been in operation in Australia for at least 20 years. Concurrent expert evidence, also colloquially referred to as "hot-tubbing," refers to a practice where competing experts are sworn and presented as witnesses at one time and remain on the stand together throughout the course of their testimony. Concurrent expert evidence has its origins in the Australian Competition Tribunal, where it has been commonly used to receive evidence from economics experts in the Land and Environment Court in New South Wales and the Commercial List of the Supreme Court of New South Wales. This practice has been employed in non-jury cases in many other Australian courts.1 Recently, concurrent expert evidence was used in two high-profile Federal Court of Australia cases involving collateralized debt obligations, one against Lehman Brothers2 and another against ABN AMRO and Standard & Poor's.3

Australian Law Reform Commissions in 2000 and in 2005 have treated concurrent expert evidence as an established practice and endorsed its use in appropriate cases.4 The procedure is now recognized in court rules and practice notes in a number of Australian jurisdictions.5 The procedure is not free of critics.6 It has not been tested in Australian appellate courts.

The Nuts and Bolts—How Does Concurrent Expert Evidence Work in Australia?

Concurrent expert evidence has been characterized in Australia as a "discussion" between or among experts. Their testimony may take the form of opening expert statements followed by a dialogue either between the judge and the experts, or between or among the experts themselves, mediated and managed by the judge. This dynamic substitutes for the typical Q&A between a lawyer and expert witness. It is preceded by pre-trial exchanges of reports and a joint submission that includes points of expert agreement and disagreement. For this reason, the "discourse which follows at trial" tracks the joint submission and does not ordinarily necessitate objections by counsel.7 While lawyers are not excluded from the process, they do not play the same dominant role historically associated with trials. Questions may be asked by the lawyers and the judge and by one expert of another, as the judge allows. The effect of this practice may be to reduce the extent of cross-examination, but cross-examination by trial counsel is always permitted.

The Case for Concurrent Expert Evidence

Australia's favorable experience with concurrent expert evidence has been based upon a conviction that bias in expert testimony should be eliminated. Even though retained by a party, experts testifying in Australian courts are required by applicable rules to acknowledge that they have an overriding duty to the court and that they are not an advocate for a party.8 Apart from promoting impartial expert testimony, many Australian supporters of hot-tubbing believe that it improves the judge's, experts' and legal practitioners' understanding of the evidence. The testimonial dialogue helps to ensure that experts deal with the same issues based on the same assumptions at one point in time so that differences of opinion are crystallized or explained. The experts can readily clarify any lack of understanding the judge or counsel may have about a point. The judge is able to compare opposing experts' evidence as they are giving their testimony rather than attempting the comparison after an interval of days or weeks and then only by a more arduous and time-consuming process of locating, comparing, or contrasting testimony given on separate occasions perhaps on subtly different but important points. Concurrent expert testimony can improve the quality, precision, and clarity of the technical communication and sharpen the differences that may exist between experts.

Justice Peter McClellan, one of the Australian judiciary's most ardent supporters of hot-tubbing, has stated that evidence that may have required a number of days of testimony in direct and cross-examination can now be taken in half or as little as 20 percent of the time that would have been necessary.9

The Limited U.S. Experience and Consonance with U.S. Rules

In the United States, the use of the concurrent expert evidence technique has been limited.10 The first reported example took place in a 2003 voting rights case before a three-judge panel of the U.S. District Court for the District of Massachusetts.11 The panel used the concurrent expert evidence technique to examine two political scientists in a case that challenged the Massachusetts Legislature's redistricting plan based on statistical evidence of discrimination. Two years later, a judge in the U.S. Court of Federal Claims used the concurrent expert evidence technique in a breach of contract case.12 There, the court evaluated the testimony of two damages experts and used the opportunity to pose several fundamental economics questions as well as clarify questions about demonstrative evidence used earlier in the trial. The practice was also employed during a Daubert hearing in a product liability case pending in the U.S. District Court for the Northern District of Ohio.13 In that case, the court initially heard separately from the parties' experts. When their testimony revealed vastly different views regarding whether manganese exposure could cause Parkinson's disease, the court held an additional day of hearings using the concurrent evidence technique. A more recent example includes the use of the concurrent evidence technique in a claims construction (so-called Markman) hearing in a patent infringement case pending in the District of Massachusetts before Judge Woodlock.14

The consensus of the U.S. judges who have used concurrent expert testimony is that the technique can be a helpful learning tool. Indeed, the Ohio judge noted in his Daubert order that "the parties and the court found this 'hot tub' approach extremely valuable and enlightening." In Massachusetts, Judge Woodlock has reported using the concurrent expert evidence technique "in a number of non-jury cases over the years, including in patent and business cases."15

To date, no reported decision of an American court has examined the compatibility of the concurrent expert evidence technique with civil rules of procedure or evidence. Wigmore cites the technique as one of several possible mechanisms for improving the use of expert testimony.16 And the Federal Rules of Evidence, while they do not specifically sanction the practice, provide a framework in which the concurrent expert evidence technique seems to fit. Rule 611, for example, gives trial courts "control over the mode and order of examining witnesses and presenting evidence so as to," among other things, "make those procedures effective for determining the truth" and "avoid wasting time."17 According to the Advisory Committee's Notes, the rule empowers trial courts to decide "whether testimony shall be in the form of a free narrative or responses to specific questions," "the order of calling witnesses and presenting evidence," and "the many other questions arising during the course of a trial."18 Additionally, Rule 614 permits trial courts to call and interrogate witnesses, provided that all parties have the opportunity to cross-examine.19 All of these rules, moreover, must be construed broadly to "promote the development of evidence law, to the end of ascertaining the truth and securing a just determination."20 As long as cross-examination rights are preserved, the use of the concurrent expert testimony technique appears to be a matter of a trial court's discretion reviewed only for abuse of discretion under the circumstances of a particular case.21

The Impact of Concurrent Expert Evidence on the Lawyers and the Expert

The concurrent expert evidence technique certainly diminishes the direct control of trial counsel and enhances the flexibility and spontaneity of the expert.

The selection of the expert raises an interesting debate as to whether the characteristics that an expert needs for concurrent evidence vary compared to the traditional manner of experts giving evidence. Experts need to be seen by the court as careful, reliable, and authoritative. Concurrent evidence changes how those characteristics are evaluated by moving from the expert being tested by an advocate to being tested by his peers. Discussion and debate become the prominent features in the more freewheeling hot tub, ordinarily unattainable in the constrained realm of cross-examination. The hot tub may require an expert who is more persuasive and cogent in his presentation of views in a "controlled" argument with a peer, rather than in responding to questions from counsel. However, the view that the hot tub benefits experts who are better communicators or debaters is not uniformly accepted. An alternative view is that the hot tub prevents a diversion from content to style as other experts are present to challenge or verify content.

The use of concurrent evidence places limits on cross-examination compared to the more traditional approach to expert evidence. Justice Peter McClellan sees this as enhancing the judge's capacity to decide which expert to accept as "a person's expertise [is not] translated or coloured by the skill of the advocate, ... you actually have the expert's views expressed in his or her own words."22 But from the lawyer's and client's perspective, the loss of a careful and searching cross-examination may mean that experts are not as thoroughly tested. Cross-examination, and its preparation, may involve a more comprehensive review of an expert's evidence than the scrutiny afforded by peer review, especially when the litigation stakes are high. Cross-examination is still possible within a concurrent evidence framework, but the advocate's ability to structure and control the cross-examination may not be as complete if the experts and judge have had a free-flowing discussion beforehand. This can mean that an advocate needs to attempt to "carve out" a place in which to put a series of questions, request that a particular issue be dealt with through conventional means, or consider how one's own expert can be deployed to contradict or question an opponent's expert. It also necessitates an inquiry of the trial judge as to how he or she plans on conducting the concurrent evidence session and an opportunity for counsel to make suggestions as to the configuration of the hot tub in a particular case.

One Technique for Two Different Models?

In the Australian system, this practice is seen to promote the impartiality of experts and the elimination of bias. Indeed, the practice fosters adherence to the expert's written pledge to the tribunal that he will not act as an advocate. This is hardly compatible with traditions in the United States. The American system tolerates, if not encourages, the adversarial use of experts whose allegiance is to the party that retains them and whose opinions may only be cloaked in the rhetoric of objectivity. It may be so that the most persuasive expert is also the most truthful, but the American system does not make the expert a functionary of the court. Were that the case, there might well be a history in the United States of some species of Australia's hot-tubbing.

While the expert's relationship to the tribunal is materially different in the United States, it is obviously desirable in either system to have expert testimony presented in a way that helps to clarify challenging technical issues. Doubtless there are many cases, particularly in the intellectual property world, where judges can benefit from the simplest exposition of technical principles, where an appreciation of technical common ground can advance immeasurably the resolution of technical disagreements. Whether in Australia or the United States, hot-tubbing can shorten the time it takes to give expert testimony and focus areas of technical disagreement for the judge. This is especially true in non-jury cases, the only circumstance where hot-tubbing has been used in Australia.

In 1901, Judge Learned Hand offered his own comment on the utility of expert testimony.23 He worried that because it was inevitably partisan, it did not really help juries reach the truth. Rather, he suggested that impartial experts be recruited and used as panels who might assess the parties' partisan expert testimony and offer a neutral, unbiased view for the jury's consideration. Although Judge Hand's suggestions in the intervening century have not had much traction in the United States, we do have rules that allow judges to appoint their own experts, something of a variant on the Hand proposal. Rule 706 authorizes the use of neutral experts that the trial court itself has selected and appointed.24 Such a judicial prerogative is exercised infrequently, but it is available in cases where the court's ability to reach a reasoned judgment is frustrated by the apparent bias of the parties' experts. The neutral expert is also available in jury cases in the United States, and the protocols necessary and appropriate to ensure the effective use of the neutral, court-appointed expert have also been considered and discussed.25

To reform the adversarial system in the United States by employing an evidentiary practice not fitted for its adversarial system could be a serious mistake. Whether in Australia or the United States, the rules of practice, procedure, and evidence should fit their intended purpose. If hot-tubbing has an American future, at least before the role of experts is broadly reconsidered, there is a case to be made that it 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 and where trial counsel have been advised well in advance of the court's intended use of the process.

Footnotes

1. Michael Legg, Case Management and Complex Civil Litigation 115 (Federation Press 2011).

2. Wingecarribee Shire Council v. Lehman Bros. Austl. Ltd. (in liq) [2012] FCA 1028.

3. Bathurst Reg'l Council v. Local Gov't Fin. Servs. Pty. Ltd. (No 5) [2012] FCA 1200.

4. New South Wales Law Reform Commission, Expert Witnesses—Report 109 (June 2005) at [6.56]-[6.62]; Australian Law Reform Commission, Managing Justice: A Review of the Federal Justice System—Report 89 (2000) at [6.113]-[6.122].

5. Federal Court of Australia Rules 2011 (Cth) r 23.15; Uniform Civil Procedure Rules 2005 (NSW) r 31.35.

6. Gary Edmond, Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure, 72 Law & Contemp. Probs. 159, 182-86 (Winter 2009).

7. In the United States, colloquies between experts in the hot tub or in response to court interrogation may necessitate contemporaneous objections to preserve appellate rights, at least when the jury is not present. See Fed. R. Evid. 614(c) ("A party may object to the court's calling or examining a witness either at the time or at the next opportunity when the jury is not present."). See generally 29 Charles Alan Wright et al., Federal Practice and Procedure § 6236 (1st ed. 1997 & Supp. 2000) (collecting cases).

8. Federal Court of Australia Rules 2011 (Cth) r 23.12, 13; Practice Note CM7.

9. Hon. Peter McClellan, Expert Witnesses—the Experience of the Land and Environment Court of New South Wales, XIX Biennial Lawasia Conference 2005, Gold Coast, 19-24 (March 2005).

10.While limited in U.S. courts, the technique had been used with increasing frequency in arbitration, in both the United States and abroad, and may be particularly suited to that forum. See Doug Jones, Party Appointed Expert Witnesses in International Arbitration: A Protocol at Last, 24 Arb. Int'l 1, 146-48 (2008) ("Hot tubbing is frequently used in international arbitration hearings. Given the more flexible and informal nature of international arbitration, it is probably better suited to arbitral proceedings than traditional litigious methods of calling expert evidence.").

11. See Black Political Task Force v. Galvin, No. 02-11190 (D. Mass.). The transcript of the relevant hearings in Galvin, as well as that in Anchor (see infra note 12), are discussed in detail in Lisa C. Wood, Experts in the Hot Tub, 21 Antitrust 3, 98-101 (Summer 2007).

12. See Anchor v. United States, No. 95-39C (Ct. Claims). Jones Day served as counsel for the plaintiff in the Anchor case.

13. See In re Welding Fume Prods. Liab. Litig., No. 03-17000, slip op. at 45 n.39 (N.D. Ohio Aug. 8, 2005) (Dkt. No. 1353).

14. See Genzyme Corp. v. Seikagaku Corp., No. 11-10636 (D. Mass.) (Dkt. entry dated Nov. 30, 2011).

15. See Wood, supra note 11, at 97.

16. 3 The New Wigmore: A Treatise on Evidence § 11.5, at 498 & n.8 (Aspen Publishers 2012) (suggesting that trial courts "[p]ermit experts from both sides not only to communicate with one another, but to testify concurrently, sitting together on a panel in which the various experts hear each others' statements, comment on them, and possibly ask questions of each other.").

17. Fed. R. Evid. 611(a)(1)-(2).

18. Fed. R. Evid. 611 advisory committee's note. See also 4 Weinstein's Federal Evidence § 614.04[4][a], at 614-21 (2d ed. 2012) ("Adherence to a particular form of conducting a trial is not required; appellate courts recognize that there is more than one permissible way to preside over a courtroom.").

19. Fed. R. Evid. 614(a)-(b).

20. Fed. R. Evid. 102.

21. See generally Scott Welch, From Witness Box to the Hot Tub: How the "Hot Tub" Approach to Expert Witnesses Might Relax an American Finder of Fact, 5 J. of Int'l Comm. Law & Tech. 154 (2010).

22. Justice Peter McClellan, Expert Evidence—Aces Up Your Sleeve?, Industrial Relations Commission of NSW Annual Conference, at 5 (Oct. 20, 2006).

23. See generally Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40 (1901).

24. Fed. R. Evid. 706.

25. See generally 29 Charles Alan Wright et al., Federal Practice and Procedure § 6305 (1st ed. 1997 & Supp. 2000) (collecting cases).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John D. Hanify
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions