Hot-tubbing the expert witnesses – the latest Australian import

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.