Blog 9 - "Hot Tubbing"

The idea of experts giving evidence concurrently, or “hot tubbing”, is an interesting one. In fact, Australia has been acknowledged for having the most “hot tubbing” experience within the courts (Rares, 2013).  

Although there are advantages to the hot tubbing method, I can’t help but look at the disadvantages. After conducting some research I found that Henry Ergas, an economist, as well as Davies J (formerly of the Court of Appeal), have also expressed concerns about the hot tubbing method. It is their belief that they may result in a more persuasive, confident or assertive expert winning the judge over, simply by overshadowing the other witness (Croke, 2013). Although it can result in shorter proceedings, Henry also argues that the process is too expensive as well as too adversarial, thus undermining the integrity of the court.

Interestingly however, after talking to a friend of mine who studies law, he states that there are lots of advantages to the process, mainly because it gives experts a “real responsibility” and that it is just a “natural move forward” from the current court process.

It appears to me that the experts would need to be chosen wisely. For example, if there was one expert that was a lot more confident or assertive than the other, it might lead to an unfair advantage. There are also the simple issue with the concept, such as availability of the experts, or the cost of the pre-trial preparation (Rares, 2013). Cross examination would be different, and the parties don’t have access to their experts during breaks, so clarification is limited. 

Ultimately, it represents a substantial difference from the traditional approach to giving expert witness (Korda Mentha, 2013). Some may say that this is a good thing, but other aspects of the court process would have to change to keep up with it.

References

Croke, A., Mallon, L. (2013). Hot-tub: lessons from Australia. Retrieved from https://www.ashurst.com/publication-item.aspx?id_Content=9604

KordaMentha. (2013). Some like it hot! Expert views on judicial orders to hear expert evidence concurrently. Retrieved from http://www.kordamentha.com/docs/for-publications/issue-13-01-some-like-it-hot

Rares, S. (2013). Using the “Hot Tub.” Retrieved from http://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/rares-j-20131012