“Hot tubbing” is the informal name used to describe expert witnesses giving evidence at the same time, “concurrent evidence” is the formal term.
Hot tubbing allows counsel to ask the experts to comment on each other’s answers in real time, and judges to develop a conversation between two experts to discuss, for example, how and why they hold different positions. From my perspective, it works well to help parties to narrow the range of matter in dispute and get to the nub of the issues.
A recent engagement had me giving hot-tub evidence to the Singapore International Commercial Court, by videolink.
My counterpart was in New York, so we were ‘back-of-the clock’ to each other, which made it impractical to schedule a full day together. Thankfully, he was unfailingly helpful and collaborative, and we were able to assemble a Joint Report by several shorter sessions together with email.
Ordinarily video evidence would be given from a room under the supervision of a local lawyer, to ensure that a witness is operating under the same conditions as if giving evidence in person. But with Stage 4 lockdowns in place in Melbourne, it was not possible to leave home or to have someone attend mine. The solution was to use cameras to provide a view of the door to the room – so that any opening to admit a sneaky witness-coach would be evident, and a view of the desktop – so that the use of notes or materials would be visible too.
The use of technology by the SICC is striking. A draft transcript was available in almost real time – appearing on screen with perhaps a one second delay, and a final transcript circulated each evening. Any documents referred to were shared on screen, in real time. Not only was attendance by video link accommodated, the Court was prepared to sit out of normal hours (a 5pm to midnight session on one occasion) to accommodate witnesses in different time zones – very humane!
Singapore has set itself to be an international centre for dispute resolution. The work that has been done towards that objective is impressive.