Room In American Courts For An Australian Hot Tub?

An evidentiary practice, novel to United States courts, has been in operation in Australia for at least 20 years. Concurrent expert evidence, also colloquially referred to as "hot-tubbing," refers to a practice where competing experts are sworn and presented as witnesses at one time and remain on the stand together throughout the course of their testimony. Concurrent expert evidence has its origins in the Australian Competition Tribunal, where it has been commonly used to receive evidence from economics experts in the Land and Environment Court in New South Wales and the Commercial List of the Supreme Court of New South Wales. This practice has been employed in non-jury cases in many other Australian courts.1 Recently, concurrent expert evidence was used in two high-profile Federal Court of Australia cases involving collateralized debt obligations, one against Lehman Brothers2 and another against ABN AMRO and Standard & Poor's.3

Australian Law Reform Commissions in 2000 and in 2005 have treated concurrent expert evidence as an established practice and endorsed its use in appropriate cases.4 The procedure is now recognized in court rules and practice notes in a number of Australian jurisdictions.5 The procedure is not free of critics.6 It has not been tested in Australian appellate courts.

The Nuts and Bolts—How Does Concurrent Expert Evidence Work in Australia?

Concurrent expert evidence has been characterized in Australia as a "discussion" between or among experts. Their testimony may take the form of opening expert statements followed by a dialogue either between the judge and the experts, or between or among the experts themselves, mediated and managed by the judge. This dynamic substitutes for the typical Q&A between a lawyer and expert witness. It is preceded by pre-trial exchanges of reports and a joint submission that includes points of expert agreement and disagreement. For this reason, the "discourse which follows at trial" tracks the joint submission and does not ordinarily necessitate objections by counsel.7 While lawyers are not excluded from the process, they do not play the same dominant role historically associated with trials. Questions may be asked by the lawyers and the judge and by one expert of another, as the judge allows. The effect of this practice may be to reduce the extent of cross-examination, but cross-examination by trial counsel is always permitted.

The Case for Concurrent Expert Evidence

Australia's favorable experience with concurrent expert evidence has been based upon a conviction that bias in expert testimony should be eliminated. Even though retained by a party, experts testifying in Australian courts are required by applicable rules to acknowledge that they have an overriding duty to the court and that they are not an advocate for a party.8 Apart from promoting impartial expert testimony, many Australian supporters of hot-tubbing believe that it improves the judge's, experts' and legal practitioners' understanding of the evidence. The testimonial dialogue helps to ensure that experts deal with the same issues based on the same assumptions at one point in time so that differences of opinion are crystallized or explained. The experts can readily clarify any lack of understanding the judge or counsel may have about a point. The judge is able to compare opposing experts' evidence as they are giving their testimony rather than attempting the comparison after an interval of days or weeks and then only by a more arduous and time-consuming process of locating, comparing, or contrasting testimony given on separate occasions perhaps on subtly different but important points. Concurrent expert testimony can improve the quality, precision, and clarity of the technical communication and sharpen the differences that may exist between experts.

Justice Peter McClellan, one of the Australian judiciary's most ardent supporters of hot-tubbing, has stated that evidence that may...

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