Virtual Hot Tubbing in the Singapore International Commercial Court, in a Stage 4 Lockdown

“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.

My “Hot-Tubbing experience” – giving expert evidence concurrently

One of the more interesting things I have done in the last six months was to ‘hot tub’* – give evidence concurrently with another expert – in the Supreme Court of Victoria.

The standard approach to expert evidence has each side engaging their own expert, who is asked to answer specific questions seen as most central to their own case.  Each expert is cross-examined separately.

The Supreme Court Rules allow the Court to direct experts to confer, and if so, specifically requires them to try to agree.  The experts must then prepare a joint report identifying areas of agreement and areas of disagreement, setting out the reasons for any disagreement.

In the matter I was involved with (which was concerned with compliance with the Banking Code of Conduct) the Court also made orders that that the two experts give evidence concurrently, sitting side by side in the witness box.

Australian Courts are apparently seen as leading the world in the use of concurrent evidence, which has been described as enabling:

“each expert to concentrate on the real issues between them. The judge or listener can hear all the experts discussing the same issue at the same time to explain his or her point in a discussion with a professional colleague. The technique reduces the chances of the experts, lawyers and judge, jury or tribunal misunderstanding what the experts are saying”  Rares J

As well as answering questions from the two barristers and the judge, at times each expert was given the opportunity to comment on the evidence given by the other expert.

The joint nature of the evidence lengthened the time that we were in the witness box to a full day’s hearing.  Even when not being directly questioned it was still necessary to pay close attention because of the possibility of being asked to comment on the evidence given by the other expert.

In my case the other expert was a person I know well, and respect very highly, which in one sense made things easier because we each thought even more carefully before disagreeing with the other!

All in all it was an enjoyable experience, and well worth considering if you have the opportunity.

*”Hot-tub” seems to provoke mirth (!) but it is actually a term used by the Court – see note 3 to Annexure B of the Federal Court Expert Evidence Practice Note (GPN-EXPT).