“Hot-tubbing” in Australia, the United Kingdom, Canada and the United States

The practice of eliciting concurrent expert testimony during an arbitral proceeding is known as the “Australian hot-tub approach” a.k.a. “dueling experts” or “concurrent expert evidence.” In the hot tub, the experts are still chosen by the parties, but they testify together—discussing the case, asking each other questions, responding to inquiries from the arbitrators and the lawyers. The intent is to make the expert evidence process more streamlined, less adversarial and ultimately more useful. The international community is seeing this concept pick up momentum in the United Kingdom, Canada and in limited circumstances in the United States.

Hot-tubbing has its advantages and disadvantages. Advantages include shaving off time from the usual direct, cross examination and redirect examination process per expert. Another advantage includes the higher probability that the expert will provide an honest opinion before his/her professional colleagues especially when challenged.

But beware hot-tubbing has its downside too. Without a formal direct examination process, the expert may not make the necessary factual and technical points pertinent to the case. Key evidence the expert considers important may be missed and the tribunal may be inundated with documents or evidence it does not need.

An effective hot tub requires an effective expert. The expert needs to be a good teacher because he/she is going to explain complicated concepts for the tribunal, not professional colleagues. The expert has to be ready to smartly question and cross-examine his/her colleague and answer smart questions as well. This includes being capable of agreeing to common facts and conclusions and maintaining credibility without giving up his/her position.

A good hot-tub expert is going to be a good listener able to answer the tribunal’s questions clearly and concisely. The expert should know the nuances of the case, keep the tribunal focused on the facts at issue, explain the client’s position, and direct the expert testimony process.

Given the broad discretion that arbitration rules generally give to arbitral tribunals, the Australian hot-tub is an attractive nuance for the alternative dispute resolution process. Since it permits the parties to effectively and efficiently work together by streamlining the issues, the time and the cost of arbitration, its implementation in more arbitration cases suggests arbitrators and practitioners might find themselves Australian hot-tubbing soon.

Recently, Doug Jones from the Chartered Institute of Arbitrators spoke on hot-tubbing at the Miami International Arbitration Society. You can review his presentation here.