Patrick Bracher | Partner | Norton Rose Fulbright South Africa | mail me |
Evidence of experts in dispute hearings can be dealt with efficiently by using the ‘hot tub’ method to deal with disputes issue-by-issue rather than expert-by-expert:
- The parties decide between them what remaining issues have to be resolved by expert evidence and the list is given to the experts to deal with.
- The experts for all parties meet together before the hearing and decide on the points where they agree and where they do not agree.
- The matters in agreement are placed on record.
- The experts from the same discipline then appear all at once in the hearing and thrash out or stand by their differences under the guidance of the court, arbitration panel or tribunal.
- The experts can begin the hot tub by each explaining their analysis and the method by which they reached their conclusions.
- Once the experts have reached agreement or disagreement under guidance of the presiding person, the legal representatives of each party are allowed to conduct a short structured examination or cross-examination particularly directed towards issues that have not been agreed.
The traditional cross-examination of expert witnesses one after the other is not always an effective way of testing expert evidence. A hot tub allows the expert evidence to be dealt with on an issue-by-issue basis rather than an expert-by-expert basis with the experts responding to one another’s views concurrently.
This method was used successfully in Caster Semenya’s case before the Court of Arbitration for Sport. It will be used in the UK’s Competition Appeal Tribunal in regard to complex economic concepts in a cartel damages claim against four power cable manufacturers. The method is not easy to use in proceedings conducted remotely but those skills will be developed.
Hot tubs can resolve difficult issues efficiently and save considerable court time and costs.