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).