Two timing

The Jackson review into civil litigation costs has generated plenty of heat and noise. But one of its many recommendations is about to slip into practice without any fanfare. The role of the expert witness in civil litigation may change forever when concurrent evidence '“ the practice of placing both parties' experts side by side in the witness box '“ begins to arrive at one London court.

Known by the entertaining label of 'hot tubbing', concurrent evidence is already accepted practice in Australia. The big idea behind concurrency is to get a more balanced and reasoned input from the experts by allowing them to question each other. One major motivation behind Jackson was to cut costs. Advocates of the arrival of hot tubs in civil courts think both of these goals can be attained by this reform. But concurrency raises a lot of questions, and will certainly alter the nature of expert witness participation in many cases.

The main drawback to the current experts regime is that, while each expert faces cross-examination from the opposing party's barrister, and possibly from the judge if he or she is inclined to plunge into esoteric details, there is no direct challenge from the other expert. Each party's expert can contribute to the cross-examination, but this emerges via scribbled notes and whispered conversations between the team. When highly technical matters are in dispute, it is hardly ideal.

With hot tubbing, the experts deliver an exposition on the evidence as they see it then submit to questions from the other expert without the intervention of counsel. The roles are then reversed, leaving the experts in centre stage while the court digests the outcome of their exchange. After each expert gives a brief summary of their position, and a précis of how they view the opposing expert's view, they are then open to conventional cross-examination from counsel.

For the expert, this opens up a delightful prospect. Freed from the straitjacket of providing their key evidence in an adversarial process, they can relax and give the court the full benefit of their considerable knowledge.

Star quality

Many experts have grown wary of the legal Punch and Judy show that traditional expert witness cross-examination can become. They view this as a battle for courtroom supremacy that often bears little relation to their field of expertise. It excludes an entire dimension of their knowledge by compressing their contribution to direct answers to questions.

Under concurrency can experts expect to have more time to expand on their opinions? In theory the two experts should be able to assist the court in reaching a more balanced opinion, while still acting in the best interests of their respective parties. And any innate bias on the part of one expert will be watered down in the exchange of views. This may encourage more professionals to get involved in the expert process, and may even lure those who have been deterred by the formal cross-examination model back into the witness box.

From the Jackson perspective, these potential benefits to the courtroom process are gilded with the cost savings that will accrue from shorter trials where expert evidence is hot tubbed before a freshly informed court. The Australian experience, where Federal Court rules have encouraged hot tubbing since 1998, does back this up. Australian judges report that the hot tub allows expert evidence to be fairly assessed as soon as it is delivered, rather than after an interval when the court needs to reacquaint itself with the facts.

David Lawler is a forensic accountant and partner at forensics specialists Forensic Risk Alliance (FRA). He has extensive personal experience of providing expert evidence on questions of loss and damage and is broadly in favour of concurrency.

But Lawler does confess to some trepidation at the star status that beckons for him and his fellow experts: 'There is a risk that this could become a personality contest, where a judge gets swayed by one confident expert.' The more rigorous debate that may ensue between experts could also raise hackles among barristers, relegated to the sidelines while their expert champions take centre stage.

Experts will be encouraged to ask each other questions, and this will presumably be a very different exchange from the cross-examination that ensues when the hot tub gives way to formal scrutiny by the barristers. If the hot tub represents a loss of control by lawyers in the courtroom, there is the potential for solicitors to redress this balance outside of the confines of the case.

Permitted preparation

It is strictly forbidden to prepare expert witnesses by tutoring them for a specific case. But solicitors can familiarise a witness with the procedures and forms that the courtroom will follow. This suggests that professional training available to experts will be intensified and extended.

Lawler believes that criticism of the way experts are deployed in court will not change with concurrency: 'There is an expert industry at the moment, and it won't be demolished by hot tubbing. The more solicitors lose control through concurrency, the more they'll want to make sure their expert has the right brief in advance.'

Better preparation can hardly be a bad thing. But Lawler thinks courts need to avoid seizing on concurrency as the magic ingredient that will erase all taint of bias in any expert witness: 'The role of the expert is a very difficult one, few experts will agree on every point, but the courts seem to want the illusion of non-partisanship.' Perhaps we need to accept that no expert can ever be totally independent, and work from there?

Marc Keidan is a partner at solicitors Cooke, Young & Keidan, a specialist disputes firm. While he is happy to carry on working with the current regime, he is curious about what concurrency has to offer. 'I wouldn't say the current system is broken, but it can and should be improved, so I extend a cautious welcome to piloting concurrent evidence,' explains Keidan, who recognises that concurrency will prove to be a shock at first.

'Some people won't like it initially because it takes solicitors and barristers, who are used to working in a particular way, out of their comfort zone.' He agrees with the view that the more extrovert witnesses will thrive under hot tubbing. 'This does favour a certain type of personality. But then at the moment you look for an expert that can stand up under cross-examination. This skill doesn't relate to the actual subject expertise the witness is being asked to provide.'

Jackson advantage

Concurrency should promote the Jackson review goals of efficiency and cost cutting, says Keidan: 'It might reduce the length of a hearing, and in theory it should allow the court to cut to the chase more quickly.' He believes that the concurrent discussion should improve on existing cross-examinations. 'This will be more balanced and discursive, there will be less of the evidence flowing back and forth and it should cut time and make the case run more smoothly.'

If it works as advertised, concurrency should offer a more informed exchange between the experts, thus illuminating aspects of the evidence that barristers simply lack the domain knowledge to drill into. And concerns that one strong personality may dominate the argument between experts should be annulled by judicial intervention. Today experts experience the frustration of hearing specialist evidence they may profoundly disagree with but which they cannot challenge immediately, being restricted to whispering to a solicitor who then conveys this information to his barrister.

Experts can meet in advance of the open court hearing to share opinions and evidence without prejudice. Keidan sees concurrent evidence as a natural extension of these pre-trial meetings. What will change is the skills that solicitors look for in their experts when those witnesses will have to carry out a cross-examination of their own in front of the court. 'You will certainly see lawyers paying very careful attention to the expert they pick to ensure that it will not all fall apart in the pressure of the hot tub,' he says.

If you want to see this in practice the place to be is the Technology and Construction Court (CC) where a recently revised guide embraced hot tubbing. The TCC deals with highly technical cases where an expert presence is the norm. The new TCC guide left the precise arrangements for giving concurrent evidence up to the trial judge and the deliberations of the pre-trial review. So there is nothing to stop a TCC judge introducing hot tubbing. Large construction and engineering disputes are likely to attract concurrent evidence. Arbitration courts may seize on the potential time and cost saving represented by concurrency. So expert witnesses need to prepare to state and defend their position under instant peer review.