From Witness Box to the Hot Tub: How the "Hot Tub" Approach to Expert Witnesses Might Relax an American Finder of Fact

• Author: Scott Welch
• Position: scott.welch@ttu.edu
• Pages: 154-164

Page 154

Experts do shade their opinions, overstate the certainty of their opinions, use unreliable methodologies or rely on unproven theories, serve as conduits of inadmissible evidence and occasionally lie in the service of their clients. ²

Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. ³

If we ever need an expert on licking ourselves, we'll give you a call. ⁴

I Introduction

"This is war!" The catchall phrase is used by lawyers across the United States to describe the current adversarial process. ¹While macabre, most of us begin to embrace the concept; we use it to strengthen our wits, work tirelessly, and train ourselves to dominate our competition. The question we must now ask is, "is there a better way?" Nowhere is this better answered than through the battle of experts in a civil trial. Rarely are these experts testifying about totally different methodologies or studies; instead, it is a battle of opinion. ⁵ Federal courts are sometimes ill-equipped to discern which of these experts should be relied upon, and our adversary system does not lend itself to a perfect understanding.

The Australian concurrent evidence procedure, informally known as "hot tubbing," may provide an excellent opportunity for a court to more thoroughly understand the issues between, and testimony of, expert Page 155 witnesses. This paper aims to provide a basic understanding of concurrent evidence, the procedures used in Australia, and some of its goals and successes. Second, it discusses the Federal Rules of Evidence, Federal Rules of Civil Procedure, and how these rules would permit and perhaps encourage, the use of concurrent evidence in American courts.

2. The Australian Concurrent Evidence Process

Concurrent Evidence is simply a newer method of eliciting expert witnesses' testimony in the courtroom. ⁶ The procedure moves away from the strict adversarial direct- and cross-examinations, to a more cordial and open discussion of the issues in which two or more experts from each sides testify at the same time. ⁷ Prior to a description of how the procedure takes place, the reader must be aware of two issues. First, the majority of civil cases tried in Australian courtrooms are done so without the use of a jury. ⁸ Second, no statutes dictate exactly how the concurrent evidence procedure is to take place within a trial. ⁹ With these concepts in mind, the following is a general explanation of how the process is used in Australian courts.

Although distinctions exist among the courts that use the concurrent evidence procedure, most courts tend to follow the same initial steps. ¹⁰ First, a court will typically require each expert to prepare a written report and exchange that report with the opposing party's expert(s). ¹¹ Then, at the trial, all experts on a particular issue are jointly sworn in, which is then typically followed by the court announcing an oral synopsis of the areas agreed and disagreed upon. ¹² At this point, the procedure tends to become less concrete among the various courts; the distinctions seemingly stem from judicial discretion more than anything else. ¹³

Some courts allow each expert to provide an "opening statement," which is essentially an overview of the expert's opinions, methods, and experiences, as each relate to the issue at hand. ¹⁴ After each expert has opened, Page 156 the next step is typically a session of court-directed questions to the independent experts. ¹⁵ Some courts prefer not to give the experts an opportunity to provide an "opening statement," and instead proceed directly into questioning the individual experts. ¹⁶ In nearly all courts, the experts respond to the court's questions directed to them and to the other experts; additionally, frequently the experts may ask follow up questions to one another in an effort to test and challenge the other's methodology and opinions. ¹⁷

Although distinctions exist in the process, the attorneys for each side still have a valuable role in the concurrent evidence process. For instance, one of the procedure's foremost advocates, Justice Peter McClellan, says that when he presides over the process, "[c]ounsel may also ask questions during the course of the discussion to ensure that an expert's opinion is fully articulated and tested against a contrary opinion." ¹⁸ In other courts, with an exception for objections, attorney involvement is limited to the end of the court's and experts' interchange. ¹⁹At which point, these courts ordinarily allow attorneys from opposing sides to ask their experts relevant and unanswered questions, as well as an opportunity to cross-examine the opposing party's expert witnesses. ²⁰ The process resumes from the beginning until all of the issues at hand are thoroughly examined by the court. ²¹

The proponents of concurrent evidence find that the procedures, as laid out above, prove to be an effective tool in eliciting the experts' knowledge. ²² For instance, Justice McClellan observes that "the capacity of the judge to decide which expert to accept is greatly enhanced." ²³ He also suggests that writing a judgment is simplified because all of the expert testimony on a particular issue is located in the same place in the transcripts of the hearing. ²⁴ However, as noted above, because the process is not uniform throughout the courts that use the concurrent evidence process, some find it to be ineffective and unmanageable. ²⁵ No matter which side of the fence the attorneys or judges fall upon, most would agree that it is necessary to develop more specific methods for conducting the procedure so that all parties involved will know in advance how the testimony will take place. ²⁶

3. The Philosophy behind the Procedure

The origin of the concurrent evidence procedure used in Australian courts stems from a desire to find (a) reliable and objective expert testimony, ²⁷ (b) solutions to the problems judges face in understanding the difficult issues that come before judges, ²⁸ and (c) ways to improve judicial efficiency. ²⁹ Page 157

A Reliable and Objective Experts

"[T]he difficulties with the integrity of expert evidence when a court is required to resolve a dispute have been recognised for a considerable period of time." ³⁰ Justice McClellan then cites to an article written by Justice Learned Hand, in which Justice Hand discusses the bias attributable to the expert when called in the adversarial process. ³¹ As far as expert witnesses are concerned in the adversarial trial, Justice Hand states, "there are good historical reasons why this third method has survived, but they by no means justify its continued existence, and it is, as I conceive, in fact an anomaly fertile of much practical inconvenience." ³² A legal scholar and student of concurrent evidence, Dr. Gary Edmond observed that "[o]ver the last decade, English and Australian judges have become increasingly anxious about the quality of expert evidence appearing in courts, particularly in their civil- justice systems." ³³ Dr. Edmond finds support from a study which reports judges "identified partisanship or bias on the part of expert witnesses as an issue about which they were concerned and in respect of which they thought that there needed to be change." ³⁴ Additionally, the New South Wales Administrative Appeals Tribunal mentions expert witnesses' integrity as one of the reasons behind its utilization of the concurrent evidence procedure in their courtrooms. ³⁵ On the other hand, opponents of concurrent evidence frequently argue it is difficult, if not impossible, to prove an expert failed to uphold his or her oath of objectivity and question if objectivity by any one witness even matters. ³⁶

In respect to concurrent evidence, not much literature exists in favor of the opponents' position that objectivity cannot be tested. However, Dr. Edmond states, "[a]ll experts are (and expertise is) more or less aligned, subjective, interested, biased, and dependent." ³⁷ He then adds that the bias and how it "affects the reliability of expert evidence is a fundamental but complex issue." ³⁸ Dr. Edmond calls the implementation of the concurrent evidence process into question, stating that procedural reforms "offer limited hope for improving the reception and treatment of expert evidence." ³⁹ He also discusses the role of the partisan expert, stating, "[n]ot only do these concepts have limited analytical utility, but there is little evidence to suggest that adversarial bias is deliberate or consistently detrimental to legal practice." ⁴⁰ Additionally, in an interview conducted by Dr. Edmond about the partisanship in the concurrent evidence procedure, a Barrister replied, "I think the judiciary gets overly concerned about trying to find an expert that doesn't exist." ⁴¹ Thus, the opposition seems to be that getting into the heads of experts to discern their objectiveness is outright impossible and unnecessary. ⁴² Regardless of where one stands in respect to concerns about expert objectivity, the court's ability to understand information presented by experts is paramount to the concept of justice. Page 158

B Understanding the Expert:

In a world of rapid advancements in nearly every area of expertise, it is unimaginable for anyone to have a full understanding in any particular field, let alone several or many. Justice G.L. Davies from...