Hot Tubbing – Evolution in Litigation

The London Times reported on 10 March that UK litigation lawyers are “bracing themselves” for the “revolution” of hot tubbing which will shortly be run in a pilot trial in Manchester, England.

More formally known as “concurrent evidence”, hot tubbing is 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.

It seems to be gathering steam in several jurisdictions, other than the US, as a method of reducing cost and delay in civil litigation.

In Canada, though used in administrative proceedings, the technique has apparently not yet been used in civil litigation trials. However concurrent evidence rules were incorporated into Canada’s Federal Court Rules in August 2010. Supreme Court of Canada Justice Ian Binnie recently expressed his approval for it (2010 49 SCLR 2d 179). A pretrial version of hot tubbing has been added to the Ontario Rules: without prejudice meetings between opposing experts are now among the directions a judge can give where a trial is ordered on a summary judgment motion (Rule 20.05(2)(k)).

Hot tubbing has enjoyed considerable support from senior members of the bench in Australia, where it originated.

Two arguments made in support of hot tubbing are the court’s need for independent and objective expert evidence, and the reduction of court time needed to hear the evidence.

Neither benefit is obvious.

Requiring experts to state their opinion in the presence of their peers may promote more measured opinions. But it may also demote expertise to second place, after the ability of a witness to advocate and justify their opinions in a confrontational panel format. And although leading expert evidence through sequential witnesses may take more court time, to some extent this cost saving is lost by the additional time and cost of preparing experts for the panel presentation and questioning.

A good review of the pros and cons can be found in the paper presented by WeirFoulds partner Greg Richards at an Insight conference on litigation held in Toronto on 1 March 2011.

Hot tubbing is an excellent illustration of how our traditional rights-based legal system, developed over centuries, can adapt to modern conditions. Resort to interest-based resolution systems, such as mediation, is not the panacea for climbing cost and delays. (See my 7 February post on this, Babies And Bath Water. )

But couldn’t they have chosen a more pleasing image? Your average engineer, accountant or scientist, by the time they have attained the eminence necessary to deserve the label of “expert”, you may not want to visualize in a hot tub.