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LEGAL REPORT/LITIGATION The idea of joint testimony from expert witnesses could really reduce litigation costs but is not being wholly embraced by the profession. BY JUDY VAN RHIJN listening to the latest debates on the subject, you will probably have heard the term "hot tubbing" as a method for organizing expert evidence in a hearing. It was coined in Australia to describe the procedure of organizing all experts in a case into a panel and hearing their evidence concurrently. The growing bulk of academic and legal papers on the topic seem to agree that both judges and experts like the idea. The question is "Should lawyers like the idea?" One of the main difficulties in decid- Hot-tubbing experts — A cross the country, courts have been strug- gling with the best way to present expert evi- dence. If you have been cess in two parts. "In the first part, the experts are asked to comment generally on the issues and discuss any differences of opinion. Then they supplement their initial testimony with comments on the testimony of other experts. The judge, lawyers, and fellow experts ask questions. The judge can suggest topics and direct the experts to comment on legally relevant issues. The second part involves cross- examination by the lawyers." In Australia, hot tubbing has a long his- ing the answer to this is that few law- yers in Canada have any experience with the practice. Professor Gary Edmond of the University of New South Wales in Australia, who has not only written exten- sively on the practice but watched it in action many times, describes the pro- tory, having been employed in tribunals as far back as the 1970s. Its spread has been driven by enthusiasm from the bench. Edmond reports that it is most used in the Land and Environment Court but also regularly in medical negligence cases. "If the judge is at all willing, it will be used in any kind of expert dispute in civil cases in New South Wales. . . . The issue we are considering in Australia is the extent to which it can be used in criminal trials with juries." Edmond is concerned about going this far. "It is very easy for the experts to say something that is inadmissible or subversive in all sorts of ways. There are real dangers." In Canada, various attempts at com- bining expert evidence are taking place, driven by the need to educate judges and reduce trial costs. John Buhlman, a partner at WeirFoulds LLP, believes procedures such as the appointment of joint experts, pretrial meetings of experts, and media- tion between experts will evolve over time. "Everyone is using a lot of experts these days and the evidence gets very compli- cated. In most tribunals and courts, most fact-finders don't have any knowledge or expertise in the area the experts are talking about. You've got non-experts trying to figure out which expert is right." Some examples of group testimony do exist in tribunals, particularly in the energy sector. Typically the experts for one side give collective direct testimony and are collectively cross-examined, then the experts for the other side do the same. "In regulatory energy tribunals, such as the www.CANADIAN Lawyermag.com JULY 2011 43 should la wy ers lik e it? Kim ROsen