In my last post, I wrote about our collective responsibility to choose expert witnesses who not only help us win cases, but are also trustworthy, honest, and responsible. We talked about the importance of integrity, and the sometimes life-changing implications of witnesses who use their wisdom and/or influence for good or evil.
This week, let’s talk about hot-tubbing.
I admit, this phrase (in the context of the courtroom) was new to me. I came across it in a National Law Review article last week, although apparently it’s been around for a while. “Hot-tubbing” is the colloquial term, coined and common in Australia, for the presentation of concurrent expert evidence. “In that procedure,” states a 2008 New York Times article, “experts are still chosen by the parties, but they testify together at trial – discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground, and sharpening the open issues.” The practice has been common in Australia for more than 20 years.
I will also admit that while this approach is certainly unorthodox here in the States, it sounds pretty interesting. How many times have we seen, either personally or at a distance, expert witnesses that effectively cancelled each other out? One says one thing, the other says something in direct opposition, and the judge and/or jury are left scratching their heads, trying to figure out which witness to trust.
From our perspective, at ECS and as attorneys, this is why it’s so critical to choose witnesses who are impeccably credentialed, well-spoken, well-mannered, and frankly seem more trustworthy in every way than the other guy. But opposing council is doing the exact same thing. Sometimes, no matter how good our witness, his or her testimony does not carry as much weight when delivered in isolation and in competition with someone equally qualified.
The National Law Review article quotes an American judge who recently hot-tubbed at trial, U.S. District Judge Jack Zouhary, and found the experience very much to his liking. “It was great to have the experts in the courtroom at the same time, nearly face-to-face, with questions they could not duck, and to hear the opposing expert comment on what he or she had just heard,” the judge shared, calling the process “great fun.”
Moving forward, Zouhary may not be the only U.S. judge to jump in the tub. Judges enjoy the freedom to use alternative approaches like hot-tubbing under Federal Rule 611, which states that “court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protest witnesses from harassment and undue embarrassment.”
As the NLR article notes, hot-tubbing primarily solves the 2nd use case, with the potential to save significant time (and therefore money) over the course of a trial. In fact, an Australian justice quoted in a 2013 Jones Day article 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.” An 80% reduction in trial time – that kind of statistic is hard to ignore.
Not everyone, of course, agrees that the U.S. should adopt this practice. The same Jones Day article is much more cautious and less enthusiastic about hot-tubbing in the American courts compared to our Australian counterparts (why does this not surprise me?) The authors question whether style counts more than content in a hot tub, and what that means for the expert witness selection process, as well as the implications on trial counsels’ control of the proceedings.
They go so far, in fact, as to call the practice a “serious mistake” and “hardly compatible with traditions in the United States” given that we “tolerate, if not encourage, 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.”
Wait a minute here – no matter what you think of hot-tubbing, don’t we ethically want more from our experts than being merely “cloaked in the rhetoric of objectivity”? I’ll resist the urge to jump on my soapbox this time, but I’m calling foul.
At any rate, I predict that we’ll see more examples of hot-tubbing in American courts in the coming years. While it may not make sense for simple personal injury cases, for instance, I can see the practice adding real value to more complex cases, especially those decided by a judge vs. a jury. It will be interesting to see where, how, and in what context the practice works its way into our processes, and what that means for both expert witnesses, and the attorneys who retain them. I’m looking forward to, ahem, soaking it all in.