29 Jul 2013 11:32am

A new approach for expert witnesses

Amidst the reforms introduced earlier this year on the back of Lord Justice Jackson's recommendations on civil litigation is a potentially significant change to the way experts give evidence in court

An amendment to Practice Direction 35 in the Civil Procedure Rules means that the court now has the power to order expert witnesses to give their evidence concurrently. It is a process commonly known as "witness conferencing" or, perhaps less tastefully, "hot tubbing".

Hot tubbing has been used for a number of years in the Australian courts, and in international arbitration, generally successfully. It was trialled in the Manchester Technology and Construction Court and Mercantile Court and, although the results of the pilot were somewhat inconclusive, witness conferencing made its way into the CPR reforms introduced in April 2013.

On the face of it, this is a positive development. The judge can take the experts through each point in turn, asking one to comment on the views of the other, chairing the discussion rather like a Today programme interview. The experts will then address the same questions in the same order; differences of view can be assessed there and then; and both court time and costs can be saved.

All too often the aim of cross-examination can be to trip up or discredit the witness rather than to elicit a constructive dialogue

It is still too early to say how well the hot tub will work in the English courts, or how enthusiastic judges will be about the idea in practice. It is a process which certainly means that the judge needs to take a more active role, and be well prepared for the detailed issues. It is a move away from the familiar adversarial process, each expert seeking to defend his or her view under the fire of cross-examination – but that may be no bad thing. All too often the aim of cross-examination can be to trip up or discredit the witness rather than to elicit a constructive dialogue.

The key, as ever, is using hot tubbing in the right cases. If, say, expert forensic accountants are providing views on quantum of a claim under various different heads of loss, one can see obvious advantages. Each issue can be addressed in turn and points of difference identified quickly and efficiently. The prospect of the impending hot tub should also encourage a more balanced stance in joint meetings and in written reports. Too often experts address questions based only on the factual position presented by the instructing party, meaning expert views can pass like ships in the night. Concurrent expert evidence could help cut through that problem, and save considerable court time.

On the other hand, where the experts take a very different approach to the issues in hand, so that it is less easy to compare and contrast concurrently, the process is less helpful. In giving expert evidence, for example, on the quality of audit or valuation work, one expert might take a very different view from that of his or her counterpart on a reasonable approach to the work. It is perhaps better then for each expert's view to be explored in cross-examination.

It is also a less comfortable process for the lawyers – again though, perhaps no bad thing. Counsel will have less control of the expert evidence both in examination-in-chief, and cross-examination. Typically, under the current process, judges will ask direct questions of witnesses only after cross-examination has drawn to a close. Once expert evidence has been given concurrently, however, the scope to recover a lost position through further questioning from counsel may be very limited indeed.

And what difference does this all make to the skills required of the expert witness? First, it puts a premium on the presentation skills of the expert. The role of the expert in witness conferencing will be less reactive than it would be in cross-examination. Quick-thinking and the ability to proactively present a balanced, clear and persuasive view is critical.

Second, understanding of the court process is all the more helpful. While experience in the subject matter is always far more important than experience in giving evidence, the prospect of hot tubbing means that any potential expert will need to spend time familiarising himself or herself with the process, and the vagaries of the court room, beforehand. That includes understanding, and preparing for, the presentation style of the other expert.

Third, and this of course is always the case, it is a process which puts still more emphasis on the need for thorough preparation at each stage in the process. Preparation will need to address the detail of not only the expert report but also the other expert's views, and the potential responses which may crop up in the heat of the court room.

We will wait to see how popular the hot tub becomes. With the profession playing such an important role in court expert witness work however, it may well be accountants – rather than lawyers – who play a large part in determining the success of the process.

Andrew HowellAndrew Howell is partner in the disputes and investigations group at international law firm, Taylor Wessing

Related articles

Forensic accounting

Engagement terms: a cap that fits

Value of fraud up 38%