Archive for March 2012

Concurrent Evidence (‘Hot Tubbing’)

Lord Justice Jackson identified expert evidence as a major and increasing contributor to civil litigation costs. One of the recommendations he therefore put forward to ‘promote access to justice at proportionate cost’ was the piloting of ‘concurrent evidence’ (CE), colloquially called ‘hot tubbing’, which is a procedure where opposing experts in like disciplines give evidence at the same time, with the discussion chaired by a judge.

There is limited research and case law regarding CE in England. In contrast, research in Australia has concentrated on looking at the advantages and disadvantages of CE.

It is argued that, by replicating the decision making process of professionals in a courtroom environment, CE reduces partisanship and improves the objectivity, quality and communication of expert evidence. It is also argued that it helps court decision making, the writing of judgments, saves time and costs and increases access to justice. The advantages of CE have been considered in a range of disputes and jurisdictions, such as Canada and the USA.

Critics of CE call it ‘anachronistic’, ‘unduly adversarial’ and ‘expensive’. In particular, it is argued that judges prefer the evidence of the more dominant expert and that an expert with a forceful personality will be able to influence his counterpart when giving evidence concurrently. It is also argued that CE may dissuade experts from giving evidence in the future.

Research has considered whether CE can reduce ‘unconscious’ and ‘hindsight’ bias and costs and has questioned the motives of the Australian judiciary in promoting CE. It has also focused on the practical implications of CE for expert witnesses, litigation practitioners and trial strategies and whether it contributes to a further erosion of the adversarial system of civil justice. It is also questioned whether CE represents an effective method to help judges understand developments in scientific knowledge and techniques.

Issues that may cause difficulties in CE have been identified, such as where there is a lack of familiarity and respect between opposing experts, an expert is acting in bad faith and experts disagree about relevant issues. It is also argued that CE is inappropriate for document intensive cases and property disputes.

The use of CE has been studied in the New South Wales Registry in Australia by the Administrative Appeals Tribunal (AAT), which considered ‘whether the technique is useful in run of the mill cases’. The study collected mixed data through a combination of surveys, focus groups and file audits. The conclusions of the study identified ‘significant benefits’ for decision-making, with improvements in objectivity, quality and comparison of expert evidence and judgment writing. There was found to be no adverse impact on hearing length.

These conclusions contrast with the perspectives obtained following semi structured interviews, discussions and court observation conducted during 2007 and 2008 in New South Wales. It was argued that experiences of CE were ‘complex’, ‘quite varied’ and, although ‘not altogether negative’, ‘do not consistently align with the claims made by proponents’. In particular, lawyers disliked the idiosyncratic ways the procedures were implemented by institutions and judges. However, experts were ‘generally favourably disposed’ towards the procedure.

A pilot study of CE is taking place at Manchester Civil Justice Centre (Technology and Construction Court and Mercantile Court) to test efficiency, suitability and possible implementation. Although the criteria for identifying cases suitable for inclusion are similar to those of the AAT study, consent of all the parties, experts, lawyers and judge are required.

The number of cases in which CE has been adopted at trial is limited, with the majority of cases settling before trial. The final report will consider whether CE positively influences settlement negotiations.

Using evaluation by questionnaires, the preliminary observations of the pilot are that ‘on the strength of admittedly slim evidence’, CE benefits efficiency and focus of expert evidence and enhances the quality of judicial decision-making. Preliminary observations regarding whether CE was more or less ‘rigorous’, objective and impacted on costs were less clear.

The preliminary conclusion of the pilot is that CE has time and quality benefits and so far there is ‘no evidence of significant disadvantages’. Although it was accepted that a larger evidence base is needed before firm conclusions can be drawn, given the favourable responses from those involved in the pilot, it ‘would seem entirely appropriate that in the implementation of the Jackson Report recommendations the use of concurrent evidence should be included in the Part 35 Practice Direction as an optional procedure which can be adopted if the judge so directs’.

This article is an abridged version of a Literature Review on Concurrent Evidence written as part of an LLM at Leeds Metropolitan University. For simplicity footnotes have been omitted. A version with footnotes can be obtained directly from Tales from my Sofa. 

Related articles

• Experts to share hot tub at Ontario Energy Board (business.financialpost.com)
• How competent are expert witnesses? (parentsagainstinjustice.org)

Back to Basics

Regular readers of Tales from my Sofa may be concerned about the lack of communication from TFMS over the last few months.

This has not been due to an unwillingness to regale others with tales of his misadventures on the Pacific Coast last year; rather, it is more to do with returning to University as a postgraduate student and having to (re)learn how to do things from scratch.

It appears that when TFMS first went to University in the later 1990′s, there was a somewhat lackadasical attitude towards the concept of learning, writing essays and plagarism. All of these have been considerably tightened up over the intervening period.

Paraphrasing a source and not identifying the reference is plagarism; reading without actively engaging with the material is a pointless exercise; and, writing an essay without planning it, is doomed to failure.

Which just goes to show that, as my dear Father always used to say, it is all about understanding and implementing the basics. Once you have got those, you just cannot go wrong.

Which then begs the question; why were we not taught these in the first place ?