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. Page 2 forensics matters 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 Page 3 forensics matters 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. Page 4 forensics matters 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 Page 5 forensics matters 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.