Part 3: Concurrent Evidence or “Hot Tubbing” – Hot Tubbing Heats Up!

New Expert Evidence Guidelines – Our Four Part Series

Forensic & Litigation Consulting | Construction

January 29, 2018


Series: Intro | Part 1 | Part 2 | Part 4

“Hired gun”, “inappropriate communications”, “contamination” and "hot tubs" are just some of the terms you'll find in the Federal Court of Australia's (FCA) greatly expanded expert evidence practice note (GPN-EXPT) released in late 2016.

So what do these changes mean for you? In a series of four bite-sized parts, we explore how you can get the best out of GPN-EXPT. Part 1 looked at the guidelines relating to the instruction of expert witnesses, and in Part 2 we discussed conference of experts and joint reports. This time In Part 3, we examine the guidelines around concurrent evidence or “Hot tubbing”.

Guideline 1

Concurrent evidence – can reduce the chance of the experts, lawyers and the judge misunderstanding the opinions being expressed by the experts. s4 of Annexure B to GPN-EXPT

  • What This Means for You
    In our experience, concurrent evidence is very useful in allowing your expert to correct any ‘misinformation’ provided by the opposing expert that may not be picked up by the cross-examiner, particularly where it relates to technical, yet important, details. Concurrent evidence allows this to be done in ‘real time’ before the Court (assuming your expert is across the detail).

Guideline 2

Each expert may be given the opportunity to provide a summary overview of their current opinions and explain what they consider to be the principal issues of disagreement between the experts, as they see them, in their own words. s14(e) of Annexure B to GPN-EXPT

  • What This Means for You
    We would encourage this as part of the process. It is the only opportunity for your expert to ‘tell the story’ in a compelling and cohesive manner. Otherwise, the expert’s ‘voice’ is only heard through disjointed responses to cross-examination.

Guideline 3

Judge will guide the process including using a list of issues as a guide for all experts to be asked questions on an issue-by-issue basis. s14(f)(i) of Annexure B to GPN-EXPT

  • What This Means for You
    A list of issues to be explored in the concurrent evidence will obviously greatly assist the expert’s preparation for the hearing, and should be encouraged.

Guideline 4

Ensuring that each expert is given an adequate opportunity to deal with each issue and the exposition given by other experts including, where considered appropriate, each expert asking questions of other expertss14(f)(ii) of Annexure B to GPN-EXPT

  • What This Means for You
    In our experience, one of the most challenging aspects of concurrent evidence is asking questions of the other expert without coming across as an advocate. You can assist in your expert’s preparation for the hearing by: • determining in advance whether this will be part of the process; and • assisting your expert to craft their questions in a manner that will be well-received by the Court (without, of course, influencing the expert’s opinion).

Guideline 5

The judge will ensure that the process is fair and effective, balanced (including not permitting one expert to overwhelm or overshadow any other expert). S18 of Annexure B to GPN-EXPT

  • What This Means for You
    Although it has not been our experience, this is a concern commonly expressed by lawyers in relation to the concurrent evidence process. Assurance that the judge will actively manage the process should alleviate concerns. In our view, an expert that is likely to be “overwhelmed” in the concurrent evidence process may also be likely to experience difficulties under cross-examination in any event. Based on our previous comments, the benefits of concurrent evidence would normally outweigh the risks.

Guideline 6

Ensuring that legal representatives have an adequate opportunity to seek responses or contributions from one or more experts in response to the evidence given by a different expert. s14(f)(iv) of Annexure B to GPN-EXPT

  • What This Means for You
    In our experience, allowing the legal representatives to ask questions of their own expert would assist in ‘getting the story across’ as opposed to relying only on responses to cross-examination questions.

Read more of our commentary on the FCA’s new expert evidence guidelines:

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