Experts and Hot Tubs

For any of you ever involved in litigation, you may have been required to hire expert witnesses to assist with a damages calculation or to testify about medical issues. If you have been following along for the last few months, you know that I previously discussed (assuming me writing and you reading counts as a discussion) the general use of experts and that they are the only trial witnesses who can render opinion testimony.

As a quick refresher, experts are people who have a specialized knowledge or expertise about some matter at issue in your suit and can help the jury understand some special or technical issue that might be beyond the day to day information people know. The most typical examples- doctors. They often testify about the extent and permanency of a particular injury or medical condition.

I'm sure you were delighted to find out that, in addition to paying me, you got to pay for the use of an expert witness. That aside, you also came to learn that the other side had an expert witness and so we had to bolster our expert and discredit their expert because even though both experts had access to the same information, they came to exactly opposite conclusions. So, in an effort to make out expert more believable, we attacked credibility and try to prove bias.

With expert witnesses, this is done by trying to show that they are hired guns for one side and that, by taking money for their testimony, they are biased. Now, it doesn't take a genius to figure out that this methodology applies to every single lawsuit in which expert witnesses are used and seems more than a little stupid to attack someone for following the established rules for the retention and use of expert witnesses.

Well, apparently some folks are tired of this idea that a party to a lawsuit hires, retains and largely controls expert witnesses. There are proponents for and studies out there about the possibility of using expert witnesses as they do in other countries. In Australia, for example, the parties still get to hire whatever expert they like, but the judge conducts the expert witness examination by getting the experts together and having more of a collaborative discussion. The Aussies refer to this as "hot tubbing" and many believe allows for a more honest assessment of the information. In other countries, expert witnesses are appointed by the courts and owe their fidelity to the process, not a party.

In fact, America appears to be one of the few hold outs of the idea that parties get to select, hire, prepare and examine their own expert witnesses.

I would be interested in hearing what any of you think about this. As a lawyer, I have my own very distinct ideas about expert witnesses, but would like to hear what those whose cases actually rely on them have to say about the issue. Feel free to post your thought.