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LEGAL REPORT: INTELLECTUAL PROPERTY hot tubbing F The hot topic of Proposed rule changes for expert testimony at the Federal Court have IP lawyers all hot and bothered. BY ROBE R T TODD ew areas of law rely on expert evidence as significantly as intel- lectual property. Patent cases, for example, hinge on an interpretation from a person "skilled in the art" — someone with technical knowledge in the area to which the patent relates. Counsel rely heavily on experts when shaping their cases, and litigants pay a steep price for their knowledge. So it's no surprise IP lawyers have fur- rowed brows over a series of proposed Federal Court rule changes that could transform how experts interact with the court. Details of the proposed amend- ments were published last fall in part one of the Canada Gazette. The pro- posals signal the Federal Courts Rules Committee's desire to reel in expert testimony, as expressed in a regulatory impact analysis statement. The state- ment refers to the "misapprehension of the role of expert witnesses" that may be prompting them to advocate on behalf of one party. The statement sug- gests that could hurt the reliability of witnesses, detracting from the utility of their evidence. It also criticized current practices involving experts for sucking up too much court time and thereby driving up costs. The committee views concurrent expert evidence — or "hot tubbing" — as a panacea. The process has been used in some Australian courts, and was rolled into Canada's Competition Tribunal Rules. It sees experts testify- ing on the same issue sworn in together before taking questions from counsel, the trial judge, and even each other. The Federal Court's proposed rules, however, would allow such experts to pose questions to one another only with leave from the court. Another notable proposal would see experts adhere to a code of conduct that would help them "understand their independent advisory role to the court," according to the statement. Yet another key change would give the court discretion to force expert witnesses to confer before a trial. Discussions and documents included in the conference would be confiden- tial and kept private from the court. While the rules committee sees the recommendations as a surefire solu- tion to partisan experts and rising court costs, IP lawyers say the pro- posals could actually exacerbate the problems. Grant Lynds, chairman of the Intellectual Property Institute of Canada's litigation committee, says the www. C ANADIAN Law ye rmag.com J A NU A R Y 2010 43 JEFF SZUC