I’ve been working on arbitration provisions for various PRECUT agreements that are in development. I ran across the fact that Australian courts have pioneered the notion of ordering opposing expert witnesses:
- to confer with each other before trial;
- to submit a joint report; and
- perhaps most notably, to testify almost by conversation.
This approach — referred to as “hot-tubbing” the experts, a.k.a. “dueling experts” or “concurrent expert evidence” — is said to focus expert witnessess more on the search for truth, and less on being advocates for the side that hired them. The idea is attracting interest in U.S. arbitration circles, judging by traffic on some email lists that I follow.
This seems like it’d be a really interesting way to run a courtroom trial or arbitration hearing. The Aussies who have used the approach appear to be enthusiastic — see e.g., the following (all accessed Sept. 14, 2010):
- Expert Evidence in Copyright Cases – Concurrent Expert Evidence and the “Hot Tub”, by Australian judge Steven Ranes (Oct. 2009);
- [Professor] Gary Edmond, Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure, 72 Law & Contemp. Probl. 159 (Winter 2009);
- [New South Wales] Uniform Civil Procedure Rules 2005, Reg. 31.23 (expert witness code of conduct); 31.24 (conference between expert witnesses); 31.26 (joint report of expert witnesses); 31.35 (opinion evidence by expert witnesses);
- Expert witness code of conduct, Schedule 7 to [New South Wales] Uniform Civil Procedure Rules 2005.
I suspect, though, that the reaction of a lot of U.S. litigators would be “over my dead body”; many litigators are control freaks, and the hot-tubbing approach would strip them of most of their control over what their experts would say on the witness stand.