forensics matters

Some like it hot! Expert views on judicial orders to hear expert evidence concurrently

Publication No. 13-01 forensics matters

Introduction

1Judicial orders to hear expert evidence concurrently are certainly not new, however the manner in which such ‘hot-tubs’ are run varies greatly from Court to Court and from hearing to hearing. In this article, we discuss the experiences of six KordaMentha Forensic Partners in giving concurrent evidence in a range of jurisdictions, and the differences between the formats used. We also assess these experiences in the light of judicial views on the benefits of this form of hearing expert evidence.

How often do Courts hear expert evidence concurrently? The American Journal Anti-Trust1 Australian Courts as having the most experience with the concurrent evidence process, and the amount of cases using ‘hot-tubbing’ seems to be on the increase. In the past year, upwards of 70 cases have employed the technique, with experts giving evidence concurrently on a huge range of topics in various Australian Courts and Tribunals. To obtain a listing and summary of these cases, please email John Temple-Cole ([email protected]) or Samantha Farthing ([email protected])

KordaMentha Forensic Partners Nigel Carson, John Temple-Cole and Andrew Ross (Sydney), David Van Homrigh (Brisbane), and David Ferrier and Owain Stone (Melbourne) all have experience in giving concurrent evidence.

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Why do Courts make orders for concurrent evidence? 2A number of excellent papers have been delivered by judges and barristers in recent years discussing the benefits and potential drawbacks of concurrent evidence. We summarise this below.

The benefits

Time • Use of concurrent evidence generally leads to a reduction in the time required to hear expert evidence.2

Greater focus on the • All the experts on the topic are together in the witness box at the same issues in question time, answering the one question on the same basis or assumption.3 • The whole process, including the joint conference and joint report, generally narrows the issues which remain in dispute to a significant extent.4 • All of the evidence concerning each issue is dealt with in a logical progression and is to be found in one place in the transcript.5

Reduced opportunity for • After opening statements by the experts, counsel may be invited to identify experts to obfuscate the topics upon which they will cross-examine. This has the advantage of reducing the chance of the first expert obfuscating in an answer; each expert knows his or her colleague can expose an inappropriate answer, and the presence of other experts induces an expert to be precise and accurate.6 • Extreme expert opinions and ‘pseudo-experts’ have become very rare.7

Control of proceedings • The discussion between the experts is managed by the judge or commissioner.8

Opportunity for experts to • Concurrent evidence allows the experts to express in their own words the convey their opinions view they have on a particular subject.9

The potential drawbacks

Turning expert into • The ‘hot-tub’ may turn an expert witness into an expert advocate, leaving advocate the judge with two opposed but apparently convincing opinions by equally well-qualified experts.10

Potential for one expert to • Courts need to ensure that confident and assertive experts do not unfairly dominate dominate the panel processes.11 Issues of credit • The conduct of a cross-examination about an expert’s credit is very difficult in a concurrent evidence setting, and some other arrangements are needed to deal with such issues.12

Concurrent availability • It is often difficult, if not impossible, to find a time when a number of busy experts can confer together.13

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What are the rules?

3Whilst the rules applicable to various Australian Courts provide for the use of concurrent evidence, none of these presently set down detailed procedures for how this is to occur. One Tribunal which does go further in providing a comprehensive procedure for concurrent evidence is the Administrative Appeals Tribunal14 (‘AAT’). The guidelines issued by the AAT deal with factors that may be taken into account when considering whether to use the procedure, as well as addressing how the procedure itself is to be conducted. Relevantly to the role of the expert, they include: „„The parties must confer early in the proceedings, and advise on dates when the experts will be available to give evidence at the same time. „„The experts may be ordered to confer prior to the day of hearing, clarify areas of agreement, and produce a joint report. „„Ensuring the Tribunal has appropriate hearing room space and facilities to hear evidence concurrently. „„The experts being given guidance on the significant factual matters which have arisen in evidence. „„The experts first being given the opportunity to express their views, and ask questions of other experts without the intervention of the parties, before parties or their representatives may proceed to ask questions. „„The experts may give a brief final summary of their views.

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How does concurrent evidence operate?

4Our experience suggests that Courts address the question of the format of concurrent evidence on a case by case basis. The table below highlights some of the differences experienced by six of our Partners, across 10 ‘hot-tubs’ in seven jurisdictions.

Court/Tribunal Federal Court of Federal Supreme Court of New South Wales Land and County Court HK London Australia Court Environment of Victoria International Court of (NSW Registry) (Victorian Court of New Arbitration International Registry) South Wales Centre Arbitration Subject matter Damages Technology Valuation/ Damages Accounting Technology Valuation – Damages/ Damages/ Loss of profits Damages compulsory Accounting Accounting acquisition Number of experts Two Six Two Two Two Two Three (two Two Two Two in hot tub (conclave) valuation and one industry) Conclave and joint Yes No Yes Yes Yes No Yes – No Yes No report prepared between before hot tub valuation experts Experts given Not at Conclave Broad Not at all Yes – after Judge Not at all Broad Broad Not at all direction on all (other process mechanics swearing in explained mechanics mechanics operation of than that was set out just before set out just as set out just hot tub opening described as being swearing in being sworn in as being statements by the sworn in sworn in would be Registrar given) on the day Experts sworn in Yes n/a Yes Yes Yes Yes Yes Yes Yes Yes together Adequate physical No Yes Yes – Marginal Yes Yes Yes – seated Marginal, after Yes Yes space and seated at in middle of rearrangement facilities either end of the bar table bar table with counsel at the end Experts gave Yes n/a No Yes No No No No No No opening statements Experts examined Yes n/a Yes Yes Yes Yes Yes Yes Very little Yes by counsel Experts Very little Yes No Very little Yes Yes No Very little Yes Yes questioned each other Judge questioned Some No – Yes No Yes Yes Yes – Yes Yes – Yes experts conclave extensive extensive run by during cross Registrar examination Experts examined Some No Yes Some Yes No Yes n/a Yes n/a on joint report Experts No No No No No No No No No No gave closing statements Length of hot tub 2.5 days 1 day 2 hours 3 days 3 days 1 hour 2 days 3 hours 1 day 1 day

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Observations

5Our experiences in the ‘hot-tub’ allow a number of observations to be made: „„It is apparent that whilst a Court or Tribunal may make an order to ‘hear the experts concurrently’, there is great variety in how the orders are implemented. „„The ‘hot-tub’, and joint expert report do not always go hand in hand. „„Even where joint reports had been prepared prior to the ‘hot-tub’, the experts were not always examined extensively on those reports but rather on their individually authored reports. In one case, an expert was examined on his opening statement, and not on any of the reports that had been prepared. „„It is often the case that the Court or Tribunal was not adequately equipped to accommodate experts in a ‘hot-tub’ (witness table space, availability of microphones, ease of shared access to documents), leading to distraction for the Court, experts and others. „„It was generally the case that prior to being sworn in the experts were given little, if any, forewarning as to the specific mode of operation of the ‘hot-tub’, for example whether opening statements were required, how examination would proceed, whether questions were allowed. „„In a number of cases, experts in the ‘hot-tub’ proceeded without being asked to deliver anything in the way of an ‘opening statement’, and we experienced no cases where closing statements were used. „„The judge usually, but not always, asked questions of the experts. „„The ‘hot-tubs’ were generally shorter in duration than we would normally experience under the traditional method of cross-examination. „„Concurrent evidence will minimise the potential for one expert (or both experts) being called to give further evidence in response to the evidence presented by the other expert.

Considerations

6To gain the maximum benefit from the process, our experience suggests that attention needs to be paid to many of the practical considerations (broadly including those contemplated by the AAT’s guidance note), including: „„The facilities of the Court or Tribunal, including the use of microphones, and consideration such as ‘who will go first’, and whether each expert will be given equal opportunity to respond to a question. „„What is the respective standing of experts who will be in the ‘hot-tub’ together? Is it likely that one may dominate or one defer to another due to seniority? „„The importance of early communication to experts as to the format, including whether the experts need to prepare opening statements. „„If your expert is to be asked to deliver an opening statement, how long should this be, will you (and can you) be involved in its preparation, and how will such a statement be treated as evidence? „„Whether it is likely that your expert will need to pose questions to the other expert(s), and if so, whether they are prepared for that role. „„If, in the course of the ‘hot-tub’, the expert to expert questioning process leads to new issues or areas of expert opinion emerging, how will this be dealt with?

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Conclusion

7Concurrent evidence is just one form of hearing expert evidence available to a Court or Tribunal. Whether it is the right, or wrong way to hear such evidence will no doubt depend upon the respective views of the Court or Tribunal, counsel and solicitors. Our experience is that using concurrent evidence usually reduces the time taken to hear expert evidence (again, whether that can be said to be an advantage is open for debate). If properly combined with a joint expert report, with clearly formulated questions, together these two processes can in our view contribute significantly to assisting the Court in understanding and weighing the respective views of experts. If these issues are appropriately considered, and assuming that this is what is desired by the parties involved, then the views of McClellan J that “concurrent evidence allows the experts to express in their own words the view they have on a particular subject” would seem to ring true. Certainly from our experience, the concurrent evidence format does increase the prospect that the basis of an expert’s opinion, and the genuine areas of difference between experts, will more likely be communicated to the Court.

About the authors

John Temple-Cole John has over 17 years’ experience and specialises in Partner forensic accounting. He has prepared expert witness Sydney and other reports in a range of complex investigation Tel: +61 2 8257 3077 and litigation assignments. [email protected] John’s focus is on forensic accounting, financial and fraud investigations and disputes. He has undertaken both expert witness and non-litigious assignments. He has prepared expert’s reports and given evidence for proceedings in the Supreme Court of New South Wales, the Administrative Appeals Tribunal and for commercial arbitration. He has also prepared expert’s reports for proceedings in the Federal Court of Australia, the District Court of New South Wales and the Supreme Court of Western Australia.

Samantha Farthing Samantha joined KordaMentha Forensic in January Senior Business Analyst 2011. Samantha works across various engagements Melbourne involving disputes, forensic accounting and fraud and Tel: +61 3 8623 3477 financial investigations. [email protected]

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Endnotes 1. Wood, L. (2007), Experts in the Hot Tub, Anti-Trust, 95 Biennial LawAsia Conference 2005), p17 2. The Hon Justice Steven Rares: Using the ‘hot tub’, how concurrent 9. McClellan J, Expert Witnesses – the Experience of the Land & expert evidence aids understanding issues (speech to the New Environment Court of New South Wales (paper presented at XIX South Wales Bar Association CPD Seminar, 23 August 2010) at 45 Biennial LawAsia Conference 2005), p17 3. The Hon Justice Steven Rares: Using the ‘hot tub’, how concurrent 10. The Hon Justice Rachel Pepper: Expert evidence in the Land and expert evidence aids understanding issues (speech to the New Environment Court (21 March 2012), at 70 referencing the views of South Wales Bar Association CPD Seminar 23 August 2010) at 29 Davies J 4. The Hon Justice Peter Garling: Concurrent Expert Evidence, 11. Mr Neil J Young QC: Expert witnesses, on the stand or in the hot tub reflections and developments (paper presented at the Australian – how when and why? (Commercial Court seminar, 27 October Insurance Law Association Twilight Seminar Series, 17 August 2010), at 19 2011), at 2.4a 12. The Hon Justice Peter Garling: Concurrent Expert Evidence, 5. The Hon Justice Kim Hargrave: Expert Witnesses/’Hot-Tubbing’ (paper reflections and developments (paper presented at the Australian presented to the Commercial Court seminar, 27 October 2010), p3 Insurance Law Association Twilight Seminar Series, 17 August 6. The Hon Justice Steven Rares: Using the ‘hot tub’, how concurrent 2011), at 3.4 expert evidence aids understanding issues (speech to the New 13. The Hon Justice Peter Garling: Concurrent Expert Evidence, South Wales Bar Association CPD Seminar, 23 August 2010) at 26, reflections and developments (paper presented at the Australian 27 and 37 Insurance Law Association Twilight Seminar Series, 17 August 7. The Hon Justice Peter Garling: Concurrent Expert Evidence, reflections 2011), at 3.2 and developments (paper presented at the Australian Insurance Law 14. Guidelines for the Use of Concurrent Evidence in the Administrative Association Twilight Seminar Series, 17 August 2011), at 2.4c Appeals Tribunal, available at http://www.aat.gov.au/ 8. McClellan J, Expert Witnesses – the Experience of the Land & LawAndPractice/PracticeDirectionsAndGuides/Guidelines/ Environment Court of New South Wales (paper presented at XIX ConcurrentEvidence.htm

This publication, and the information contained therein, is prepared by KordaMentha Forensic Partners and staff. It is of a general nature and is not intended to address the circumstances of any particular individual or entity. It does not constitute advice, legal or otherwise, and should not be relied on as such. Professional advice should be sought prior to actions being taken on any of the information. The authors note that much of the material presented was originally prepared by others and this publication provides a summary of that material and the personal opinions of the authors. Limited liability under a scheme approved under Professional Standards Legislation.

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KordaMentha Forensic We have over 50 specialised forensic team members allowing us to offer a comprehensive forensic response to your needs. With team members located across Australia and Singapore, and through our co-operation with AlixPartners, we provide a seamless global response. Our team features individuals with diverse backgrounds in accounting, audit, consulting, corporate regulation, corporate compliance, information technology and law enforcement. Whenever factual, accounting, financial, regulatory or eDiscovery problems arise, we identify the relevant issues to deliver accurate and objective solutions. We provide services in the following areas:

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Contacts Sydney Perth Andrew Ross Nigel Carson Jarrod Baker Partner Partner Director +61 2 8257 3051 +61 2 8257 3080 +61 8 9220 9330 [email protected] [email protected] [email protected] John Temple-Cole Alex Bell Brisbane Partner Executive Director +61 2 8257 3077 +61 2 8257 3053 Brian Wood David Van Homrigh [email protected] [email protected] Partner Partner +61 7 3338 0250 +61 7 3338 0220 Andre Menezes Paul Curby [email protected] [email protected] Executive Director Executive Director +61 2 8257 3023 +61 2 8257 3050 [email protected] [email protected] Singapore Matthew Fleming Lily Yap Melbourne Partner Director +65 6593 9363 +65 6593 9329 Owain Stone David Ferrier [email protected] [email protected] Partner Partner +61 3 8623 3410 +61 3 8623 3380 [email protected] [email protected]

Robert Cockerell Executive Director + 61 3 8623 3355 [email protected]

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