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'Hot-Tubbing' Makes its Way Into Civil Trials

I'm from the United States, home of "The Bachelor" -- so I know enough about "hot-tubbing" to know that, at its best, it doesn't involve old men and women sitting around pontificating about whether some molecular compound is strong enough to support a 10-story building or whether a particular type of fertilizer should be used on Bermuda grass soccer fields located in shady areas.

In Australia, however, hot-tubbing of that sort is all the rage now in civil trials. As discussed on the Slaw blog, hot-tubbing is the phrase used to describe "a new method of presenting expert evidence at trial. Opposing experts testify in each other’s presence, as members of a panel, and are questioned in each other’s presence in front of the trier of fact."

This system is also making inroads in the United Kingdom and Canada. In the U.K., a pilot trial of hot-tubbing will soon begin in Manchester, England. In Canada, the Federal Court Rules were recently amended to enable hot-tubbing (aka "concurrent evidence").

As discussed in a paper recently presented by the WeirFoulds law firm, hot-tubbing

involves asking all of the experts to generally comment on the issues in the case and discuss their differences in opinions. Once each of the experts has explained his or her position, they usually supplement their initial testimony with comments on the testimony of the other experts. The judge, lawyers and even fellow experts ask questions of the experts, mostly of an eludicatory nature. The judge may also suggest topics and direct the experts to comment on legally relevant issues. At the end of the first stage, each expert is usually asked if there is anything they would like to add or clarify.

In addition, "questions may be put to more than one expert at a time and witnesses can be asked to comment on the answers of other witnesses." This sounds like quite an event, and one that could get quite lively!

Indeed, one of the concerns raised about hot-tubbing is that "[a]n expert who is more aggressive may dominate the panel discussion," making an aggressive personality as important as expertise. For a detailed breakdown of the pros and cons of legal hot-tubbing, read the full WeirFoulds article here.

Posted by Bruce Carton on March 23, 2011 at 02:00 PM | Permalink | Comments (1)


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