Expert witnesses give evidence ‘in the hot tub’

In a recent case in which Forensic Partner at Milsted Langdon, Roger Isaacs was giving evidence, the judge ordered that a procedure known as hot-tubbing should be adopted. Despite what this photo suggests, the term has nothing to do with jacuzzies but actually refers to what is more formally known as witness conferencing.

Typically, under English Law, witnesses give their evidence one after the other. However, in hot-tubbing all the experts of like discipline are sworn in together and are asked questions by the judge.

It seems likely that ‘hot-tubbing’ is to become ever more common, not least because the experience of the courts is that it saves considerable judicial time and, as the Ministry of Justice is all too keenly aware, time is money.

Cross-examination can be a daunting prospect for some but those who are likely to perform best in the hot-tub will need very particular character traits. The traditional scenario in which a barrister cross-examines a forensic accountant pits an expert in one discipline (law) against an expert in another (accountancy).

There is, therefore, always the prospect that the accountant will be able to bamboozle whoever is cross-examining him or her. By contrast, in the hot-tub, an accountant is pitted against accountant.

By giving evidence simultaneously, direct comparisons will inevitably be drawn between two opposing experts and whichever is able to give the most cogent and convincing evidence is likely to overshadow his or her counterpart.

One can easily sympathise with any judge who, faced with the prospect of three solid days of expert accountancy evidence, concludes that any alternative short of self-mutilation would be appealing.

It is, therefore, perhaps not entirely surprising that the suggestion of using hot-tubbing in this recent case had its genesis in a surfeit of accountants. That said, if evidence is to be given in this way, the judge has to lead a process in which he is required to undertake a proactive role as chair and inquisitor.

For anyone used to the English adversarial approach to justice, it is a wholly alien experience to see a judge engaging in what is a positively Napoleonic and inquisitorial style of interrogation of witnesses.

Taking each issue on which, the experts disagree in turn the judge typically repeats questions put to the first expert to the second and third in a manner vaguely reminiscent of the Blind Date TV show in which contestants famously put “the same question to number two please”.

It soon becomes apparent that any interrogation by Counsel is somewhat redundant on the basis that if the judge had considered a question relevant or significant, he would have already asked it.

One of the aspects of traditional cross-examination that is highlighted by hot-tubbing is the fact that Counsel has to anticipate which issues are likely to be relevant to the judge and inevitably time will be spent dealing with matters on which the judge has either already been persuaded or which he considers irrelevant. By contrast, allowing the judge to be the primary inquisitor means that he can “cut to the chase”.

The effect is dramatic in terms of timing but the exceptional speed puts further pressure on experts who have far less thinking time in the hot-tub than they would have if they were to face traditional cross-examination. That said, if the length of the trial can be reduced, that can have a significant impact on the costs which is good news for litigants.