To tub, or not to tub? Last chance to comment on Civil Justice Council's expert hot-tubbing survey

Baths are scary enough without
interlopers...

Hot-tubbing.  Warm water.  Fresh air.  View of the mountains.  Bubbles disguising any flabby bits.  What is not to love?  Nothing or possibly everything when viewed in the context of expert evidence.  The practice of "hot-tubbing" or "concurrent evidence" has long been a topic of intrigue for us in the UK.  The practice is more common in Australia and allows the judges and trial lawyers to question experts together.  Experts are also able to directly challenge each other's evidence, which can make it easier to identify the issues in contention.  As Lord Justice Jackson explained

"the general view [from the Australian experience] is that this procedure is beneficial for four reasons: 

(i) The procedure is quicker and more focused than the traditional sequential format. 

(ii) Experts find this procedure easier; they give evidence better and sometimes more impartially than under the traditional sequential format. 

(iii) Judges find it easier to understand complex technical evidence when it is given in this way. 

(iv) The procedure achieves a significant saving of both trial time and cost."

Following the Jackson review, hot-tubbing was introduced to legal proceedings in England and Wales.  The process is set out in Practice Direction 35 which states that at any stage of the proceedings the Court may order hot-tubbing.  Paragraph 11.2 of PD 35 and onward sets out the procedure.  Importantly the judge initiates and leads questions addressed to each expert witness and may invite the other expert to comment.   The parties' representatives then get their turn, but only insofar as it tests the correctness of an expert's view or clarifies it.  The judge then summarizes the views expressed.

So, what has happened?  Well, as far as the AmeriKat is aware, nothing in the Patents Court.  This is despite Sir Robin Jacob commenting in his recent book, IP and Other Things, that there should be "no formal reason why it should not happen in England and Wales", despite lawyers obviously being resistant to the idea.  Cross-examination of your expert is scary enough, why make it scarier with having the other side's expert having a crack at it?  Or so, the complaint would go.

Lord Neuberger described this state of affairs in a recent speech he gave to the Royal Society last November on "Science and Law:  Contrasts and Cooperation" in which he stated:

"Nonetheless, when it comes to expert evidence, I can see considerable attraction in the notion of the experts giving their evidence at a somewhat more informal basis, at a hearing which is more like a meeting chaired by the judge. Court rules now permit such concurrent evidence, or hot-tubbing as it was dubbed by the Australians who developed the concept, and who now, I understand, adopt it in most civil cases. However, it is currently little used in this country, owing no doubt to what is, depending on your view, appropriate scepticism or innate conservatism on the part of lawyers and judges.

Lawyers may fear that concurrent evidence would result in a loss of control on their part, and judges may fear that it would involve greater preparation and early understanding of the issues on their part. Both fears are justified in fact, but do not represent good reasons to avoid hottubbing. So far as the justice system is concerned, lawyers are there to assist on getting the right answer. The fear of the judges may, at least in some cases, be partly attributable to the fact that there are very few judges, other than those who specialised in patent law when in practice, with any significant scientific education!

Lord Neuberger goes on to discuss the fact that "scientific ignorance has not prevented some judges with no significant scientific education proving themselves to be very find judges of scientific issues" and some other great quotes worthy of a read.

The Civil Litigation Review Working Group of the Civil Justice Council is conducting a survey of the practice, with responses due this Tuesday, 31 May 2016.  A full report of the findings of the survey will be published in July 2016.  The survey is focused on those legal representatives who have actually bee involved in hot-tubbing - either in England and Wales or in another jurisdiction.  Those who have not had experience are immediately ushered to Question 10 which reads as follows:

"For legal representatives who have not used "hot-tubbing" as part of legal proceedings, please feel free to make any comments about the process in the box below (including whether you may have proposed the use of hot-tubbing in a particular case, but the court declined to make that direction)."  

Views on Question 10 will be "most helpful" to the Civil Litigation Review Working Group, so if you want the Courts to direct more hot-tubbing or not, perhaps now is your chance.

To complete the survey, click here.

With a Kat pat to Alisa Carter of Gowling WLG for bringing this to the Kat's attention.