Hot tubbing; Sat Plaha, partner and head of forensic services at BDO LLP in Birmingham, delves into the world of hot tubbing.
There was a time when a reasonably competent professional could feel comfortable if called upon to give evidence to the courts, without further training or experience and without feeling out of their depth.
We could debate whether the passing of those more gentlemanly arrangements is a loss, but it is now clear that those days are long gone - expert testimony is now a professional activity in its own right and it seems there is no place for the amateur 'gentleman players'.
The expert must now, with the risk of a negligence suit, be able to account for his experience and expertise, field cross examination questions from counsel and, with the recent development of hot tubbing, also contend with live exchanges with the opposing expert witness, spurred on by counsel or the presiding judges or tribunal members.
It is the introduction of hot tubbing - simultaneous expert testimony and questioning, including questions posed by the opposing expert - which is the biggest potential 'game changer'.
80 in a tub Earlier this month we showcased the art of hot tubbing in a mock trial that attracted 80 guests from the legal community across the West Midlands. Participants included His Honour Judge Waksman QC, who is currently involved in the Manchester concurrent evidence pilot scheme, and His Honour Judge Grant from the Birmingham Technology and Construction Court, as well as two leading barristers from St Philips and No5 Chambers and forensic experts from BDO.
During the mock trial, hosted by the Birmingham Law Society, guests saw the expert witnesses come under cross examination from their opposing barrister in the conventional format of examining experts separately and individually.
But then, using the same case study, the experts gave evidence concurrently to demonstrate the method of 'hot tubbing'.
Judge Waksman took control of proceedings and questioned the experts directly and at the same time.
The evening was a great success, giving guests the opportunity to compare and contrast the two very different methods of giving evidence, and witness firsthand the intensity and sufficiency of the level of detail contained in the joint statement.
Prior to hot tubbing, an expert having strong courtroom skills might deflect a difficult question, relying upon the anxiety of Counsel who from many years of experience knows not to dig into areas where the witness can wrong foot them. Consequently, it used to be difficult for the opposing expert or their assistants to provide sufficient ammunition to enable counsel to manoeuvre and respond to a talented expert.
No longer - during the simultaneous expert testimony of hot tubbing, points that might otherwise be lost or go unchallenged can be almost immediately addressed.
Face off This process places a greater premium on the intellectually agile expert who, fast on their feet, is familiar with the detail and who, from experience and personal expertise, can react quickly and faultlessly to changes in assumptions or in the assumed facts.
Those having insufficient expertise and experience face difficulty. On a direct comparison of testifying experts, side by side, like for like, question by question, any shortfall in knowledge, expertise or intellectual capacity is far more evident.
Hands-on expert This seems to end the role of the expert 'front-man' who has little involvement during the case work and yet presents the evidence at trial. Whilst this is unlikely to mean the end of expert witness work involving the work of a team (many large projects cannot be delivered cost effectively without leveraging a team), it is likely to require the expert witness to commit greater resources to considering the assumed facts, the opposing opinion evidence and preparing in detail for trial.
For many these shifts represent a positive change, as it focuses the minds of the experts and the activity of the courts on the critical issues, therefore shortening trials and improving the quality of the process through which justice is delivered.
However, for those who offer other advice or have additional business activities, this extra pressure is likely to make them question whether expert testimony is worth the stress.
Going forward In the long term, this will inevitably increase the price of expert testimony - the fact that expert witnesses bear increasing exposure in terms of personal embarrassment during testimony, combined with potential professional negligence claims and the burden of trial preparation, will drive up standards and cause weaker firms to leave the market.
It is destined to become better engineered, and ever more important to the higher value, more complex cases as the fate of such trials will more closely rest on the mettle of the expert.
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|Publication:||The Birmingham Post (England)|
|Date:||Nov 24, 2011|
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