Some like it hot!

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 (jtemplecole@kordamentha.com)  or Samantha Farthing (sfarthing@kordamentha.com)

Why do Courts make orders for concurrent evidence? A 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 What are the rules? Whilst 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.  
• he 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.

How does concurrent evidence operate? Our 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.   Observations Our 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 To 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?

Conclusion Concurrent 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 Partner, Sydney Tel: +61 2 8257 3077 jtemplecole@kordamentha.com John has over 17 years’ experience and specialises in forensic accounting. He has prepared expert witness and other reports in a range of complex investigation and litigation assignments. 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 Senior Business Analyst, Melbourne Tel: +61 3 8623 3477 sfarthing@kordamentha.com Samantha joined KordaMentha Forensic in January 2011. Samantha works across various engagements involving disputes, forensic accounting and fraud and financial investigations. Endnotes

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