Hot tubbing: effective dialogue between experts in courts

21 November 2011

 In adversarial litigation, medical or technical experts may present extreme views to the court. Reliable experts may be grilled endlessly on their credibility. Australian judges innovated the way they talk with experts in court. 

In the adversarial system, parties to a dispute can retain their own expert on medical or technical issues. This may lead to extreme views, brought forward by experts who do not represent the state of the art in the field. Sometimes, reliable experts are grilled by lawyers on their background and credentials for many hours, distracting attention from the disputed facts. Many times, two competing views on the facts emerge, and courts have still have difficulty to assess the value of the evidence.

One of the solutions to this problem is known as “hot tubbing”. Experts of any party who have similar expertise and will give evidence about the same issues are required to provide written reports which are exchanged between them. They are then required to meet and identify the issues upon which they disagree. During the trial, the list of the issues upon which they disagree becomes the agenda for a discussion which is chaired by the judge. The experts may ask each other questions and the advocates for each of the parties may also ask questions of any expert witness. Apart from chairing the discussion, the role of the judge is to ensure, by asking appropriate questions, that he or she has a complete understanding of the evidence of each expert so that if areas of disagreement remain between the experts at the end of the trial the judge is able to efficiently resolve those issues.

See videos of how it works on Innovating Justice Forum


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