AUSTRALIAN court practices have started a trend towards the “hot-tubbing” of expert witnesses in the United States, The New York Times has reported
The NY Times article by Adam Liptak, published on 11 August, cites a growing body of American judicial opinion to suggest that a hot-tubbing approach would be preferable, more efficient and more cost effective than the standard US practice of partisan expert witness testimony.
Those reading this article because of steamy hot-tubbing connotations will be disappointed to know that in Australia the practice is more commonly referred to as concurrent legal testimony. The process allows expert witnesses — such as economists or scientists — to discuss their opinions collaboratively.
Lawyers Weekly contacted one of the experts cited by The New York Times, Gary Edmond, law professor at the University of NSW, to discuss his researching findings.
Edmond is critical of the current application of hot-tubbing in Australia, following extensive research into the area and observation of court process.
“What I’m saying in the [research] paper is that we don’t really know a lot about expert evidence, bizarrely enough, and we don’t really know how the reforms will work in practice,” Edmond said. “I’m critical of some of the things that have been said about concurrent evidence, but I think it has a lot of potential.”
Edmond explained: “For at least part of their testimony, experts are freed from the constraints of formally responding to lawyers’ questions.”
The practice developed in Australia in an attempt to stamp out expert witness bias, following the recommendations of the Woolf report tabled in Britain. The changes were embraced by Australian tribunals such as the Administrative Appeals Tribunal (AAT) and the Land and Environment Court — a logical step because tribunal judges routinely hear evidence in a more informal atmosphere than their courtroom peers.
Justice Peter Heerey of the Federal Court of Australia and Justice Peter McClellan of the Supreme Court of NSW are outspoken proponents of the practice. Justice McClellan once commented: “You can feel the release of the tension which normally infects the evidence-gathering process.”
One of Edmond’s qualms about the introduction of concurrent evidence in Australia is the lack of across-the-board procedural reform. He has found that much of the shift has been the result of unilateral reform undertaken by the judiciary.
“Where it gets a bit more messy is the question of whether you want judges managing law reform unilaterally, because they have the interest that might not necessarily be coincidental with the parties or the lawyers,” he said.
“Part of the issue is that it hasn’t been implemented in a very systematic way. Different judges and different counsel use it in different way, and I suspect it’s being used strategically by them as a consequence.”
Another issue is the wider problem of incorporating scientific reasoning into the legal process, and the assessment of the reliability of the evidence provided by those experts.
“I think one of the problems with expert evidence, and [more broadly] in this jurisdiction is that the judges have rejected the idea of the need for reliability as a requisite, especially in criminal cases for the prosecution,” Edmond said.
So the question of whether the US would be better off trading in their adversarial trappings for a dip in the hot tub remains, according to this expert, unresolved.
“Both systems are going to have difficulties and they’ll introduce unfairness,” Edmonds said. “So I’m not sure that these things can be resolved. I think one of the problems with the whole discussion about expert evidence and the reform of procedures is that a lot of the discussion is really based on quite simplistic ideas about science and expertise.”
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