"Hot-tubbing" the Experts: will they sink or swim?

What are Australian courts doing with their experts? 

Obtaining immense popularity in Australia, where the phrase was coined, the procedure of "hot-tubbing" the experts effectively leaves lawyers out of the equation when it comes to presenting expert testimony. Instead, competing experts are sworn in to court together and testify together, engaging in an active discussion about the evidence at issue. This concept may seem outlandish to the zealous advocates in the room who object when opposing counsel breathes too loudly, but Australian courts have had an abundant amount of success with the hot-tubbing practice – over twenty years of success to be exact.

How does it work?

When a case with a need for expert explanation comes up, each side obtains his or her own expert as necessary for the case. Then, rather than presenting affidavits and controverting affidavits and presenting experts for depositions, experts each report to each other and produce a joint submission outlining their points of agreement and disagreement for the judge. Experts are then sworn into court at the same time and presented as witnesses together throughout the course of their testimony. Essentially, the experts engage in an active discussion on the evidence, with intermittent questions posed by the judge or one of the experts to the other expert. Because the experts collaborated on a pretrial submission to the judge regarding areas of agreement and disagreement, there is no reason for the attorneys to object. This process takes the place of traditional lawyer-expert examinations. 

What are the potential benefits to hot-tubbing? 

The rewards of using this procedure rather than examining the experts separately are three-fold. First, this process would, to some extent, reduce potential bias of the experts on both sides. By collaborating with a fellow colleague and debating in front of the jury, the expert moves from being questioned by an advocate with limited knowledge to being tested by a peer who has perhaps equal or greater knowledge on the subject. This places a sort of pressure on experts to (1) do diligent research and (2) ensure that their stated position is one that they are willing to stand by prior to the discussion in court. Second, the hot-tubbing procedure allows both the judge and the jury to consider all of the expert evidence at one time, increasing the likelihood that the jury remembers the opinions of both experts and how those opinions differ. The jury is also better able to assess, not only the opinions of the experts, but the credibility of each as well. Finally, this practice improves the judge's, expert's, and jury's understanding of the evidence. 

Does it hold water in the American legal system? 

U.S. federal law does not specifically address the hot-tubbing concept, nor does it prohibit the Australian practice. Federal Rule 611 give judges wide latitude with respect to expert witness testimony, stating that the “court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.”

While concerns have begun to swirl regarding the potential negative effects hot-tubbing experts would have on the American adversarial system, hot-tubbing has had considerable success in the limited number of American bench trials where judges have utilized the procedure. In 2015, Hon. District Judge Jack Zouhary forced the experts to "splash" it out in a complex, antitrust class-action in Ohio. Although the action was a bench trial, Judge Zouhary noted that he is eager to find a suitable case for hot-tubbing the experts in front of a jury: “Throwing everybody in the ‘hot tub’ at the same time allows the court, counsel, and experts to confront or, ‘splash,’ each other directly, resulting in a better chance of reaching a correct conclusion.” This result, and other positive reactions from various American judges lead me to wonder if our friends down under may have the right idea after all, at least in terms of expert testimony.