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between experts can only occur in expert- only pre-settlement conferences where the discussion is off the record. All these approaches are quite different from hot tubbing, where experts from both sides are sworn in together and have a tech- nical, high-level discussion. Manning sees that it could be an effective way of quickly highlighting the areas where experts dis- agree. "The question is whether experts can best do that themselves with appropri- ate input from counsel and the tribunal." Buhlman thinks hot tubbing could be a beneficial process but thinks pretrial meet- ings are a better way to proceed. "If experts talk you can often isolate what the real issues are. They may find that they made different assumptions or had a different starting point. They find they can under- stand the other expert's position and may be able to agree." In an interesting twist, reforms in Australia require experts to meet pretrial as part of the concurrent process. Edmond says they only need hot tubbing afterwards if there are differences that the fact-finder ought to hear. He also refers to reductions in time and costs as an undisputed benefit, stating with confidence that the greater efficiency in presenting evidence means the expert evidence takes 20 per cent to 50 per cent of the usual time. "You don't have to lead all the witnesses through the factual history in a serial fashion," he explains. "It's more efficient just because of that." It may also help with the age-old prob- lem of polarization of witnesses under the adversarial approach. Supreme Court of Canada Justice Ian Binnie has said, "The theory is that experts testifying in the presence of one another are likely to be more measured and complete in their pro- nouncements, knowing that exaggeration or errors will be pounced upon instant- ly by a learned colleague, as opposed to being argued about days later, perhaps by unlearned opposing counsel." Bruce Outhouse, a partner at Blois Nickerson & Bryson LLP in Halifax, who is external counsel for the Nova Scotia Utility and Review Board, believes that much depends on the issue and the expert. "We're used to seeing certain experts who always have the same approach. They make a living testifying frequently on the same subject in different jurisdictions. They are unlikely to make compromises on the record. A debate with an expert who usu- ally takes the opposite approach would probably not achieve much." Another concern lawyers have is los- ing control of how they present their evi- dence and perhaps of the proceedings as a whole. The risk of an interdisciplinary bunfight seems to depend on the experi- ence of the experts themselves. "It can be difficult to keep it on track," admits Edmond. "However, most of the partici- pants have come out of the conventional adversarial system so they are generally fairly restrained and don't give too much unsolicited material." Edmond watched a case in a federal tri- bunal in "Australian wine country" where PROFESSIONAL DIRECTORY Supreme Court of Canada Counsel and Agency Services Henry S. Brown, QC Brian A. Crane, QC Guy Régimbald Martin W. Mason Graham Ragan Matthew Estabrooks Eduard J. Van Bemmel, Law Clerk the experts were geographers and viticul- turalists. "They were people you don't usu- ally see in court. There were eight witnesses, all of different disciplines, all arguing with each other. It was genuinely a free-for-all." The solution to this is that judges have to be far more active. But this raises concerns too, as Buhlman notes: "A judge is sup- posed to be neutral and let the lawyers run the case. If they get too involved, are they in fact stepping down from the bench?" Hot tubbing is slowly creeping into the legal consciousness of the northern hemi- sphere. In the United Kingdom, Lord Jus- tice Jackson's review of civil litigation costs in December 2009 proposed that a pilot program should be run with the consent of everyone involved to see if the Civil Procedure Rules should be amended. A new procedural guide to the Technol- ogy and Construction Court also has an explicit reference to the practice. In Canada, only the new Federal Courts Rules introduced in August 2010 and the federal Competition Tribunal Rules explicitly allow judg- es to force lawyers to serve up their experts in a hot tub, while stressing the duty of the expert to the court. While there is certainly much ambivalence about the panel approach amongst the bar, Outhouse voices the thought that might cause Canadian lawyers to give the hot-tubbing option a try. "If it's so entrenched in Australia, maybe they've found a better answer than the regula- tors have found here." montréal ottawa toronto hamilton waterloo region 160 Elgin StreetSuite 2600OttawaOntarioK1P 1C3T 613-233-1781 calgary vancouver moscow london www.CANADIAN Lawyermag.com JULY 2011 45 ntitled-5 1 12/13/10 3:13:40 PM ntitled-5 1 4/6/09 4:20:13 PM