Those who work in the civil justice arena will be aware of the possible introduction of concurrent expert evidence, also known as ‘hot-tubbing’.
The idea has come over from the Australia courts where it has received widespread acclaim, especially in resolving valuation claims involving expert surveyors. The procedure allows experts from both (or all) parties to give their evidence by means of a technical discussion so that the expert issues can be dealt with ‘in one go’. This has the advantage of maintaining the thread of an argument until it is resolved, rather than hearing from one expert one day, then from another on the same subject a few days later.
The other widely acclaimed advantage is that it enables the experts to question each other rather than having to sit behind Counsel and prompt him at the appropriate time, hoping that the question from behind will be understood and presented effectively. In theory, this should allow for crisper questioning and constructive discussion between the experts in Court. Experts in Australia have reported the process as being less intimidating and formal, leading to more open discussions between the Experts which the Courts have reported as helping them find a solution more readily: and it’s cheaper because there is less repetition and less badgering in cross-examination.
I had a foretaste of the process recently but I didn’t have to travel to Australia for the experience, although it took just as long. I was in Norway in a small courtroom in the Arctic Circle. The matter was a civil dispute between Insurers regarding the cause of a fire in a domestic property and I was instructed for the Defendant, an equipment manufacturer. Over there, the rules of disclosure are much less strict and so it was not quite clear exactly what would be presented to the Court. The cases are presented by Advocates who are Solicitors and Barristers rolled onto one. Whilst I was able to spend a good deal of time with Counsel before the trial and in preparation for the hearing, there was still a strong sense of mystery on the steps of the Court.
The first difference to note when getting into Court was the layout of the room. Rather than the Advocates facing the Judge, they faced each other at right angles to the Judge’s bench. The witness was sat between the Advocates and immediately in front of the Judge, rather than at one end of the room. This made it very easy for everyone to see and hear what was going on.
The first expert was a Policeman (fire investigation in Norway, as in most of Scandinavia, is carried out by the Police, not the Fire Service) who was called by the Claimant. He was introduced by the Claimant’s Advocate and then, rather than being led through his evidence, he made a presentation of his evidence before summarising his conclusions. During the presentation, both Advocates could ask questions for clarification. At the end of the presentation, cross-examination took place although this was brief as clarification of many points had already been requested during his evidence in chief. After the Advocates had finished, I was asked if I had anything to ask. I was able to ask a few technical questions but was careful to do so from an inquisitorial perspective rather than seeming to cross-examine the witness.
Similarly, I had to prepare a presentation for my testimony and decided, having heard what had gone before, to use a flip chart to develop some of the more technical arguments. This went down well with all concerned and again, during the presentation, I received questions from left, right and centre rather than just from my own Advocate. At the end I was asked questions by the other side’s expert and was able to answer in a way that helped us reach agreement on key technical issues.
There were a couple more noteworthy differences to a Civil Court in England or Wales. I had not heard from the lay witnesses and did not know exactly what might come from their testimony; no signed statement had been produced beforehand. In England and Wales, the witness evidence is normally heard by the experts so that it can inform their opinion. As I had left before they were called, I do not know if their accounts were at odds with the technical evidence and if so, how the Court resolved that issue.
Another interesting difference occurred during recess while I was still formally giving my evidence. I was expecting to wait quietly and alone until everyone returned but instead, my Advocate asked me outside for a review of the situation and to discuss what might need raising after recess. It was quite acceptable for me to discuss the case with him during the recess and in fact, it was a very useful meeting as it allowed us to focus on the remaining arguments and get through the testimony more quickly and efficiently.
In summary, I found a number of aspects of the Norwegian Court to be very constructive and more efficient than in England and Wales. In particular, the more relaxed approach to the structure of giving and receiving expert testimony helped to crystallise the technical issues in a timely and effective manner. The ability to talk to Counsel during recess was entirely constructive and, in my view, beneficial to the Court. Letting the Experts present their evidence instead of being led in chief, especially with the ability for both sides to seek clarity as it went along, was again an effective and efficient means of delivery. Most of all, I was impressed by a system which allowed the experts to ask each other pertinent questions in order to bring clarity to the expert evidence; indeed, the fact that the questions came from an expert meant they were constructive, and to the point.
While ‘hot-tubbing’ is being anticipated with eagerness, there are also some concerns that having the experts sat side by side questioning each other could lead to a lack of structure, and domination by the stronger character. In the Norwegian Court I found that the more structured approach, with experts giving their own testimony but being questioned by each other, provided the benefits of ‘hot-tubbing’ without the risks. The whole approach of the Norwegian Court was more relaxed and intended to make best use of the experts rather than trying to control them. On the negative side, I would have preferred the stricter rules of disclosure enjoyed in England and Wales as well as the ability to hear the lay evidence first so that I could be sure that my own evidence would be of greatest value.