In civil ligation, the participation and cooperation between disputing parties and the court often helps expedite the process and reduce court time and the resulting costs. Indeed, when both the Federal Court Rules1,2, and Ontario Rules for Civil Procedure3 were changed in 2010, they included a provision that judges could request experts meet, all together now, to discuss areas of agreement and disagreement and prepare a joint statement for the court.
Creating a collegial atmosphere for experts is not a new concept. Since the 1970s Australian courts have been using expert witness panels to solicit viewpoints of multiple experts at the same time. The practice is known as concurrent evidence, witness-conferencing or more informally as "hot-tubbing" and aims to facilitate "more efficient legal practice and more-impartial expert evidence".4 The colloquialism of a "hot tub" is meant to symbolize a more laid-back setting where experts can relax and discuss complex issues in a thoughtful manner while feeling comfortable as well as professional.5
Since the primary goal of concurrent evidence is to enhance the efficiency of the court while reducing time and increasing understanding, the traditional procedural process requires that experts take on more of an active role outside of court procedures. Australia's procedures typically may include the following:
- Individual briefs: each expert prepares a document outlining their qualifications and the facts and matters upon which they will base their testimony, among other matters.6
- Pre-trial meeting/conference: a few days before the court date, the experts meet together to discuss their areas of agreement and disagreement. The belief is that it is easier to concede a point in a friendlier, non-confrontationist environment at a pretrial conference than in a charged court room.7 As such, experts are said to be more accepting of different views and more likely to accept another expert's input.8
- Preparation of a joint report: A joint report is intended to narrow the areas of disagreement and assist the court in formulating questions to aid in its evaluation of the different testimonies.9
- Hot-tub hearing: The experts are individually sworn but usually sit side by side, can ask each other questions and field questions from the adjudicator.
- Oral exposition: each expert presents the report, highlighting their areas of disagreement.
- Questions: While the tradition has been for counsel to lead the expert, hot-tubbing encourages the adjudicator to become more involved and to direct the hearing by asking questions.10
International arbitration and witness-conferencing
A leading and increasing approach to international commercial dispute resolution is international arbitration. Since it can lack some of the formalities of the traditional court system, it has embraced the use of witness-conferencing to simultaneously hear fact and expert witnesses in order to control time and costs. Witness-conferencing, it should be noted, does not include a provision that the parties meet before the hearing.11 Rather, the experts each present their arguments and are able to respond to questions from the tribunal. The technique can either be a "free-flowing" panel discussion or can be more structured and formal. Since 2009, it has been described as the normal method for examining experts and has been encouraged for use in obtaining evidence from non-experts as well.12
Those in favour of hot-tubbing argue there are various benefits of concurrent evidence.
- Efficiencies in time and costs
Having experts meet and confer to narrow the areas of disagreements can help lower spiraling litigation costs. The process of hearing all experts at once reduces the time involved in direct examination, cross-examination and re-examination and repetitiveness of having experts go through the evidence.
- Increased clarity
Having experts meet beforehand to narrow down the scope of their differences allows the adjudicator to focus on understanding the main points in dispute. Questions asked between the expert; between the adjudicator and the experts; as well as between parties and experts have been considered more constructive and helpful to the court's understanding13. It also may provide for greater clarity since the issues are discussed sequentially rather than having differing viewpoints on issues presented by experts days or weeks apart.
- Reduced adversarial bias
The Pediatric Forensic Pathology Inquiry, conducted by Justice Goudge of the Ontario Court of Appeals found that calling expert witnesses in panels assisted at putting them at ease and facilitated discussions.14
- Increased credibility
Retired Supreme Court Justice Binnie has stated that hot-tubbing could ensure experts are more precise in their work and the reports they provide knowing that errors, embellishments, inconsistencies or blanket assumptions will be immediately challenged by professional peers rather than perhaps by opposing counsel at some point in the future during cross-examination.
- Increased opportunities for settlement
An Australian study determined that in a sample of cases before the Administrative Appeals Tribunal, over half of the cases were resolved during the preliminary stage because concurrent evidence encouraged them to consider issues at an earlier time by enabling settlement of a key issue and by providing an opportunity for parties to hold settlement discussions.15
Not everyone agrees. When the Justice Review Task Force formed the Civil Justice Reform Working Group in 2004 to explore fundamental changes to the British Columbia Supreme Court civil process, the proposed change that was most contested was Proposed Rule 8-3. This rule suggested that expert witnesses meet and confer in advance of trial and in the absence of counsel for the purposes of narrowing the areas of disagreement.16
Some of the arguments against the use of concurrent evidence include:
- Increased advocacy
While the assumption appears to be that experts will exhibit collegiality towards one another and neutrality in the arguments they present, there is concern that experts with more assertive personalities or forceful natures will overshadow or bully their contemporaries during the pre-trial meetings or in a court setting. The BC Department of Justice, in contesting Proposed Rule 8-3, stated that hot-tubbing assumed all experts will have equal "power" at the conference but this might not be the case if there are senior and junior experts. As such, the less experienced expert may feel compelled to defer to the view of their seniors if there are no facilitators present.17 The risk is that the loudest voice may be given greater credence when, in fact, its arguments may not have the greater merit.
- Procedural fairness
Litigators have stated they feel "sidelined" and run the risk of not being able to control the witnesses or the discussion. Concerns have also been raised that matters related to legal procedures are outside an expert's proficiency and could result in the release of highly prejudicial or inadmissible information by the experts during the course of their discussions.18
Similar concerns have also been raised of the adjudicator: in order to maintain order of the witnesses, the adjudicator must become much more active to keep the experts focused on the issues. As such, there is apprehension that the adjudicator may lose their neutrality.
- Increased preparation costs
It has been suggested that costs may actually increase as a result of counsel having to prepare the expert not only for questions they may face while in the hot-tub but also to assist them in preparing questions for opposing experts while presenting their own position on the issues. As well, it has been noted that while there may be "agreements" between experts in the pre-trial phase, these agreements are not binding and can be withdrawn or modified once the expert has been able to consult counsel.19
In spite of differing views between proponents and opponents, hot-tubbing seems to be inching its way closer to civil litigation proceedings in Canada. Varying forms of concurrent evidence are already present in other Canadian procedural forums.20
The Ontario Energy Board ("OEB") recently amended their Rules of Practice and Procedure to include a provision that the board may require two or more experts to confer with each other in advance of the hearing. This is required for the purposes of narrowing issues, identifying points on which their views differ/agree and prepare joint written statements to be admissible as evidence at the hearing; and appear together as a concurrent expert panel for the purposes of answering questions from the OEB and others and commenting on each other's views.21
International Chamber of Commerce ("ICC"): The ICC updated their Rules of Arbitration in 2011 to include "case management techniques" which may control time and costs. These techniques included having experts meet before the hearing date to reach an agreement on as many issues as possible and highlight their areas of disagreement in order to narrow the issues for discussion.22
Federal Competition Tribunal ("FCT"): The FCT rules include mention of "witness panels" where some or all witnesses testify together.23
Ontario Environmental Review Tribunal ("OERT"): The OERT Rules of Practice and Practice Directions include specific guidance for pre-hearing consultations using panels of witnesses to receive evidence.24
- Ontario supreme court
While the procedure has yet to be used in any extensive way in Canadian civil courts, there appears to be an appetite for exploring the process. In a recent case before Ontario Supreme Court Justice Edwards, where the parties were seeking summary judgment in the face of competing opinions from their respective experts, Justice Edwards dismissed the motion and advised counsel to consider employing some form of hot-tubbing.25
Our direct experience finds judges, arbitrators and mediators in Ontario flirting with hot-tubbing concepts.
Requiring experts to meet to discuss and narrow issues in advance of trial seems to be a growing, albeit recent, phenomena. In mediation, we have seen a number of examples of experts being brought together in the absence of clients and their counsel to discuss damages and in some cases, agree on a damages amount.
Notwithstanding the question of whether civil courts will use hot-tubbing as an administrative procedure to facilitate proceedings or serve as an alternative dispute resolution technique, the duty of the expert remains to assist the court by simplifying areas where they have technical expertise so that the adjudicator can form a basis of understanding the underlying matter. While it appears more favorable with adjudicators rather than litigators, the continuing hope among administrative decision-makers is to find alternative methods to increase procedural efficiencies while continuing to support fair decisions.
So, The Beatles seemed to have an idea ahead of their time: all together now, "One. Two. Three. Four. Can I have a little more?"
1 Federal Court Rules 282.1 pertains to Expert Witness Panels. The rules provided that the Court may require some or all of the expert witnesses testify as a panel.
2 Federal Court Rules 282.2 pertains to (1) Testimony and (2) Examination of panel members. The rules provide that the expert witnesses may give their views, comment on the views of other panel members and may be re-examined in a sequence determined by the Court.
3 Ontario Rules of Civil Procedure, Rule 20.05(2)(k). The rule states that the court could require experts to prepare a joint statement on their areas of agreement and disagreement if the court believes that in doing so there would be savings in costs or time.
4 Gary Edmond, "Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Court Procedure" (2009) 72 Law & Contemp Probs 159. Online reference: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1509&context=lcp
5 Hans Eriksson, "Experts in the Australian hot tub: The Australian concurrent evidence reform and why it should be adopted by the Swedish legal system" (2008) Faculty of Law, University of Lund, p7. Online reference: http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1557283&fileOId=1564270
6 NSW District Court, "Expert witness code of conduct" no date available (current), §5-9 NSW Land & Environment Court, "Practice Direction: Expert witnesses", May 14, 2007, Sched. 2.5-9.
7 Eriksson, p.19.
8 Judicial Commission of New South Wales, "Instructional DVD: Concurrent evidence, new methods with experts", 2005.
9 Australian Law Reform Commission, "Report number 90, Managing justice: a review of the federal civil justice system", 2000, chapter 6. Online reference: http://www.ag.gov.au/Documents/ALRC89%20 Government%20responseFinal%20May%2003.pdf
10 Erickson, p. 32
11 Caroline E. Foster., "Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality", Cambridge University Press, 2011.
12 Hilmar Raschke-Kessler, "The Leading Arbitrators' Guide to International Arbitration – 2nd Edition", Chapter 19 – Witness-conferencing
13 McLellan, Peter "Expert assessment: the NSW Supreme Court's progress", Lawyer's Weekly, 2007. p. 3f.
14 Goudge Report. "Chapter 7: The scope and Approach of the Inquiry, Inquiry into Pediatric Forensic Pathology in Ontario: Volume 4" Goudge Report, p. 669.
15 Erickson, p.15
16 Concept Draft Proposed New Rules of Civil Procedure (July 23, 2007), http://www.bcjusticereviewforum.ca/civilrules/downloads/CivilRules_ConceptDraft_Jul2007.pdf
17 Online reference: www.bcjusticereviewforum.ca/civilrules/ages/viewByDetail.cfm?sid=77
18 Edmond, p178
19 Hon Justice Peter McClellan, Chief Judge of the New South Wales Land & Environment Court of New South Wales, Address at the LAWASIA Conference: Expert Witness – The Experience of the Land & Environment Court of New South Wales, 20-24 March 2005. Online reference: http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_20Mar05_McClellan.pdf/$file/Speech_20Mar05_McClellan.pdf
20 The listing is not exhaustive.
21 Ontario Energy Board, Rules of Practice and Procedure (Revised November 16, 2006, July 14, 2008, October 13, 2011 and January 9, 2012) – see §13A.01 – 13A.02. Online reference: http://www.ontarioenergyboard.ca/OEB/_Documents/Regulatory/OEB_Rules_of_Practice_and_Procedure.pdf
22 International Chamber of Commerce - International Court of Arbitration, Arbitration and ARD Rules, September 2011 – see Appendix IV. Online reference: http://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/2012_Arbitration%20and%20ADR%20Rules%20ENGLISH.pdf
23 Competition Tribunal Rules, SOR/2008-141, §75. Online reference: http://laws-lois.justice.gc.ca/Search/Search.aspx?txtS3archA11=witness&txtT1t l3=%22Competition+Tribunal+Rules%22&h1ts0n1y=0&ddC0nt3ntTyp3=Regulations
24 Environment and Land Tribunals Ontario: Rules of Practice and Practice Directions of The Environmental Review Tribunal, July 9, 2010. §190. Online reference: http://www.ontarioenergyboard.ca/OEB/_Documents/Regulatory/OEB_Rules_of_Practice_and_Procedure.pdf
25 Paul v. Oliver Fuels Ltd. 2012 ONSC 978.
Anna Maria Cicirello
is a Senior Manager within KPMG's Forensic practice in Toronto. She holds a Bachelor of Commerce degree, is a Chartered Accountant, and a Certified Public Accountant in the United States of America. With over 10 years of experience in public accounting, she has assisted with investigations, dispute advisory, contract compliance and data analytic assignments within Canada and around the globe.
Contact: firstname.lastname@example.org or (416) 777-8471