August 11, 2008
Hot Tubbing: Old Wine in New Bottles for Expert Witnesses
The New York Times has discovered that expert witnesses retained by parties often are partisan. This certainly is fit to print, but is it news? Not to anyone who has been reading law reviews and opinions written during the past century or two. (For a good recent analysis, see Bernstein (2008).)
Still, the Times revealed that the Australians have discovered a way to improve expert testimony. They call it "hot tubbing.":
In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues.
Interestingly, "Australian judges have embraced hot tubbing." According to UCLA law professor Jennifer Mnookin, "[t]he future ... may belong to Australia. 'Hot tubbing,' she said, 'is much more interesting than neutral experts.'”
If so, the movement will resemble the breakthrough of the Beatles "from Hamburg." (In 1961, when the band returned to Liverpool from Germany and made an appearance at The Cavern Club, some in the audience thought they were watching a German band.) Fifteen years ago, when I gave a traveling series of seminars to federal judges under the auspices of the Federal Judicial Center, I suggested that the judges experiment with this format. At least one judge was intrigued, saying that it sounded like the McLaughlin Show, but might be worth a try.
The idea certainly did not originate with me. I got it from a 1989 report of a blue-ribbon panel on statistics in the courtroom. The panel observed that
F.R.E. [Federal Rule of Evidence] 611 allows the trial judge to exercise power over the presentation of evidence to make it more effective and efficient. Many judges have used that authority in innovative ways to modify the traditional sequencing of evidence. For statistical matters, there are a variety of approaches tnhat might be attempted. When the reports of witnesses go together, the judge might allow their presentations to be combined and the witnesses to be questioned as a panel discussion ... .
Panel on Statistical Assessments as Evidence in the Courts (1989, 174). But "hot tubbing" is a lot catchier than "panel discussion," and the right packaging sells a product.
David E. Bernstein, Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution, 93 Iowa L. Rev. 451–489 (2008)
Adam Liptak, American Exception: In U.S., Partisan Expert Witnesses Frustrate Many, N.Y. Times, Aug. 11, 2008, available at http://www.nytimes.com/2008/08/12/us/12experts.html?_r=1&8au&emc=au&oref=slogin
Panel on Statistical Assessments as Evidence in the Courts, The Evolving Role of Statistical Assessments as Evidence in the Courts (Stephen E. Fienberg ed. 1989)
August 11, 2008 | Permalink
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Why does it make them any LESS partisan?
Posted by: S.cotus | Aug 12, 2008 2:58:48 AM