Hot tubbing – how was it for us?
'Hot tubbing' is a term we'll probably
be hearing more of in future. It's one of the more peculiar coinages
in the legal lexicon, and is certainly less forgettable than its more
conventional description as 'concurrent evidence'. The latter is what
actually takes place in an interesting new approach to the
involvement of expert witnesses in court.
Despite its lack of cocktails and romance, hot tubbing in a legal sense has some strong points in its favour; and BDO and the Northern Circuit Commercial Bar Association (NCCBA) have been closely involved with workshopping the new procedure in Manchester. A pilot programme is underway in the city, and if results are favourable there is likely to be a national roll-out of the initiative.
'In simple terms, hot tubbing means that expert witnesses from both sides sit together and are questioned directly by the judge,' explains Brent Wilkinson, a Forensic Partner at BDO. 'In principle, this means it is easier to focus on the important issues, and the judge is able to obtain a clear understanding of the points on which the experts may differ.'
The experts will have initially produced their reports as normal, Wilkinson continues, but will then get together and produce a joint statement where they set out their areas of difference. 'The judge will discuss the key issues with counsel and agree the areas that need further discussion, and will then go through these with the expert witnesses in court, asking them to explain their views. The barristers will be able to ask questions afterwards, but only on matters that have not been covered by the judge.'
Hot tubbing is a common procedure in Australia, from where much of the initial expertise has been drawn. BDO and the NCCBA worked with Australian material to conceive a workshop to coincide with the launch of the pilot in Manchester.
BDO Forensic Services Director, Adam Smith, fleshed out an original idea from Stephen Connolly of Exchange Chambers and created a mock trial scenario which was initially run through on the traditional model, with opposing barristers Mark Cawson QC of Exchange Chambers and Neil Berragan of Kings Chambers cross-examining the experts; and then re-run on the new hot tubbing principle, with the judge His Honour Judge Waksman QC taking control of the process.
'It was a very successful exercise,' commented Smith. 'We found that with the hot tubbing the judge got much further in the same amount of time: the cross-examinations diverged and didn't really affect the views expressed in the expert witnesses' statements, whereas the judge was able to focus on the key points of difference and form a view.
'It was also positive from the point of view of the expert,' states Smith. 'When you're being examined by a partisan barrister you're constantly on the look-out for trick questions and so on, whereas you know the judge is neutral so you feel under less pressure.
'That said, the experts are also able to ask each other questions. In the usual system they might pass a note to their side's barrister if they feel something needs further probing, but hot tubbing brings an aspect of advocacy to the role of the expert: in a sense, it's you in the hot seat.'
Unsurprisingly, this change in roles isn't to everybody's taste. 'Barristers have been a bit concerned,' confirms Wilkinson. 'Some feel sidelined and have voiced fears that it will mean they lose control of their witnesses, and if the case begins to go in a direction they don't want to see, there is less they can do about it.'
Nevertheless, early signs are that hot tubbing has the potential to bring welcome focus and brevity to many cases, and the results of the trial in Manchester will be watched with interest.
