Hot tubbing experts
The Canadian Federal Courts Rules are being amended, after many months of consultations, to clarify the roles of expert witnesses during litigation.
The proposed rules have now been published in Part 1 of the Gazette. As discussed in the RIAS, the most interesting part of the proposal is the part that would allow experts from opposing sides to be put in a metaphysical “hot tub”:
“(8) Concurrent expert evidence “hot-tubbing”
Proposed rules 282.1 and 282.2 would allow the Court to require that some or all of the experts testify as a panel. Experts will only be allowed to pose questions to each other with leave of the Court to ensure the orderly presentation of evidence. The rules governing cross-examination and re-examination will continue to apply to experts testifying concurrently.”
Though the Court is concerned with an expert “advocating” on behalf of the party who pays her retainer, the question remains whether the new approach will solve the Court’s headaches (or create new ones). For example, if issues are won by, as a practical matter, the most vocal or rhetorically persuasive expert in the hot tub, then why should we expect reduced advocacy by experts?
