Hot Tubbing?
Picture you and your opponent’s expert witnesses hashing out the merits of your respective cases in a hot tub. That, one supposes, is the vision implied by the phrase “hot tubbing,” an intriguing practice mentioned in this excellent New York Times article by Adam Liptak on expert witnesses.
The story points out that in the U.S., unlike in many other democracies where experts are appointed by the court, paid expert witnesses often provide partisan testimony containing “polar opposite” views of the same set of facts. In the United States more than anywhere else, many trials evolve into a so-called “battle of the experts” in which the experts greatly influence the outcome. A distinguished lady or gentleman capable of winning the jury’s confidence can give one side of the other an edge.
The Times article gives proper voice to longstanding international criticism of our system:
“Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid. The European judge who visits the United States experiences ‘something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,’ John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago.”
I can fully understand this critique, but surely experience tells us that experts in any field are prone to disagree, to varying extents, when analyzing the same set of facts. Given the uncertainty and fluidity of knowledge, particularly in the spheres of medicine, technology, and science, it seems appropriate that all sides to a dispute should have the opportunity to present well-qualified expert testimony in support of arguments.
But what is one to do when experts flatly disagree about a fundamental issue? The example from the Times piece was a case in which the defense and prosecution presented experts who came up with completely different IQ numbers for the defendant, with one side insisting the man was not competent to stand trial and the other testifying that he was. Though he ultimately sided with the defense, the judge “threw up his hands” with respect to the experts, discounting the testimony as biased.
Australia has an intriguing solution to the expert witness conundrum: “hot tubbing.” According to the Times piece,
“[E]xperts are still chosen by the parties, but they testify together at trial – discussing the case, asking each other questions, responding to inquires for the judge and the lawyers, finding common ground and sharpening the open issues.”
One can see how a less controlled discussion could benefit decision-makers. Arguably, however, the process of direct and cross-examination achieves a similar outcome. A skilled cross-examination of a witness will reveal the fault lines, the uncertainties in the subject matter in question.
Likewise, direct examination, if handled well, can overcome the perception of bias that judges or juries may have. How you present the expert is crucial in this respect. You want to convey in striking detail the depth of his or her expertise, as well as the evidence on which his or her opinions are based. You want to create the impression that the expert is infallible, or nearly so, and doing so is not a matter of lawyerly magic or biased testimony, but of marshaling real, irrefutable facts in a logical fashion.
True, the other side is seeking the same goal. Judges and juries may become frustrated with the back and forth, but that is the nature of adversarial trials in this country, at least for now.
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