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conferences could create havoc in terms of trial co-ordination, he suggests. "Can you imagine the added expense and logis- tical complications of a pre-trial expert conference involving, for example, all of the accountants, or all of the chemists, or all of the psychiatrists? That is an entire- ly new expense . . . and it would be an enormous expense." It's already difficult enough, says Radhakant, to get experts together to testify one after another. The new expense could also create a compet- itive advantage for deep-pocketed liti- gants, he suggests. Costs could also soar if experts must stick around to partici- pate in a hot-tub panel after submitting their fact evidence. Litigants will have to foot the bill for that downtime. Meanwhile, the Rules of Professional Conduct restrict lawyers from commu- nicating with their experts while they are being examined. That means IP liti- gants may also face the added expense of retaining consulting experts through- out a trial. Their expertise would be called upon if another expert is unavail- able to a lawyer because he or she is testifying on a panel. "I may be denied access to my own accounting experts for the duration of that panel," notes Radhakant. Turning to the proposal for con- fidential pretrial conferences among experts, Donald Cameron, of Cameron MacKendrick LLP in Toronto, says this change aims to narrow issues before trial. There are fears that this proposal too would embolden the partisan stance of experts. They will go into the confer- ences with their own scientific beliefs, but may pack along the legal theories of the side they are acting for, he says. Another strategy imported from Australia may prove more fruitful, sug- gests Cameron. There, aggressive pretri- al conferences are held to inform a judge of key issues. The judge can also probe parties to see how firmly they hold vari- ous arguments. "That's allowed them tremendous success in saying, 'What is this case really all about, counsel?' early on, before the trial occurs, and thus narrowing the issues, and the length of trial, and the number of witnesses, etc." He suggests an off-the-record tutorial for judges before trial could also help streamline cases. The amount of tech- nical evidence judges face on many IP cases leaves them trying to "take a drink from a fire hose," he notes. On the whole, Robinson is keen to focus on the rule changes she views as positive steps. She applauds the rules committee's recommendation to have counsel agree on qualification of experts before they appear at trial. That could snip up to a day of trial time, as it pre- viously took over an hour to introduce each witness' professional background. She also likes the proposal to reduce the number of witnesses, and a move to give judges discretion to shorten testi- mony on redundant points. "Those are all very real, maybe smaller-step-type changes that can be brought about both through the amendments as proposed and just some of the current practice. I think the hot tubbing is getting every- body's attention because it is a bit radi- cal, and it's got a great name," she says. Osgoode Hall Law School professor Janet Walker, common law adviser to the Federal Courts Rules Committee, says the group pondered many of the concerns lawyers are raising. She sug- gests some of the fears focus on situa- tions that are unlikely to arise in prac- tice. It will be rare, for example, to see expert pretrial conferencing involving a pair of experts alone in a room with- out a judge or counsel, and against the wishes of parties. Even so, she says that eventuality has been tempered by the requirement that it be in the "interests of justice." The code of conduct for experts will also help guide such a meet- ing, she suggests, as it emphasizes the requirement to act in an independent and objective manner. Walker admits the committee's most lively discussions surrounded the pro- posal for hot tubbing. The chief out- come of that rule is the availability of a new range of options for the provision of testimony, she says. "It's very help- ful, I think, to have encouragement of the rules to have parties actually take it up." The committee opted against the potentially more controversial option of permitting court-appointed experts. "We just, frankly, couldn't work out how that would fit well with our sys- tem. How would the court know who to appoint, and what questions to put?" Court-mandated single joint experts were also ruled out. "We hope we got it right," says Walker, reflecting on the full spectrum of proposed amendments. "I think we were quite careful to try to avoid situa- tions that could be very troublesome, and we've been relatively prudent and cautious in the way that we've intro- duced the initiatives. We are optimistic that they will be helpful." www. C ANADIAN Law ye rmag.com J A NU A R Y 2010 45