The law goes hot tubbing to ease out the truth

Melbourne, 3 March 2005: An initiative by the Supreme Court of Victoria which could lead to speedier and less costly resolution of commercial disputes, has been warmly received by lawyers involved in both litigation and arbitration work at national law firm Clayton Utz.

Melbourne litigation partner Kym Fraser says the court has amended its practice notes to allow two significant changes in procedure in commercial dispute litigation.

"One change is the introduction of a process colloquially known as hot tubbing, which requires the experts engaged by the opposing parties to present their evidence in a panel format," Mr Fraser said.

"The other is a process of joint conferencing of experts whereby the court directs the experts to confer before trial and following that meeting, to prepare a joint memorandum to the Court identifying areas on which they agree, the matters on which they disagree and a brief summary of the reasons for their disagreement."

Mr Fraser said one of the great challenges in commercial dispute litigation was in assessing the evidence of experts called by opposing parties.

"Inevitably each party will identify and call an expert or experts they believe they can rely on to give evidence that will favour their case. Usually the evidence of the experts for each side will be diametrically opposed on key points.

"Which expert is to be believed?"

Mr Fraser's colleague Andrew Stephenson who is one of Australia's leading arbitration practitioners says that in conventional trials the evidence of experts is tested by a process of exhaustive cross examination by lawyers.

"In jurisdictions such as in the UK where hot tubbing and joint conferencing was practised it had been found that:

• when experts need to justify their opinions to fellow experts, extreme views were usually moderated;
• it was easier to concede a point in a non confrontationist environment, than it was in the glare of a trial, where there was pressure to adhere to a previously expressed opinion.
• the joint conference or panel was often the occasion for disclosure of facts or relevant information that was unknown to, or unappreciated by, one or other of the experts;
• peripheral issues could be agreed or isolated as being of no moment, while significant points of disagreement could become identified and better defined;
• the discussion between the experts was likely to be conducted on a higher plane, and in a more scientifically appropriate fashion, than in court, where it was led by counsel unversed in the technology, and
• the discipline of drafting a report itself tended to bring sharper focus to the issue."

Mr Fraser said that in Australia hot tubbing was first used in the Australian Competition Tribunal to enable experts to give their evidence on the same occasion.

Typically, it began with an oral exposition by each of their own position, and comment by each on the other opinions, which was followed by cross examination and re-examination, either witness by witness on all topics, or alternatively on single issues.

The questioning could be conducted by the witness, the judge, or counsel, or all of them, as appropriate.

"Hot-tubbing allows the experts to have the opportunity to ask each other questions in relation to the expert report of the opposing expert.  This can then be followed by the expert making a short presentation summarising their opinion," Mr Fraser said.

"The overriding purpose of the Victorian Supreme Court’s decision to allow hot tubbing and joint conferencing is to facilitate time-saving and cost-saving resolution of the real issues in commercial disputes.

"As such it is an initiative that is to be wholeheartedly commended and one which is likely to attract considerable interest by other courts in the country."