“Hot Tubbing”

The resolution of construction disputes is typically a costly and time consuming process. As a result, new dispute resolution methods are constantly being developed.

One of the newest methods is colloquially known as “hot tubbing.” It has been developed in the context of international arbitration and is being touted as an improvement over the traditional method of introducing expert evidence through examination and cross-examination.

Professional engineers are often involved in construction disputes, sometimes as parties to the dispute and often as expert witnesses. Decision-makers such as arbitrators or judges have found that expert evidence can be singularly unhelpful in determining the facts when the experts retained by each disputing party do not agree on key issues. The arbitrator or judge may not have a construction background, so he is left wondering which version is correct after receiving contrary evidence from expert after expert through direct examination, cross-examination and re-examination.

Hot tubbing can be described as “concurrent witness evidence” or “witness conferencing.” It was first developed in Australia and has been used for some time in international arbitration proceedings.

Hot tubbing does come with some risks and it is not appropriate for every construction dispute. However, it is an intriguing process that can clarify the technical/engineering issues and allow the decision-maker to come to a better understanding of them. It can therefore save time and costs for all parties.

The process involves a panel of opposing expert witnesses. The expert testimony is introduced at the arbitration through a formal discussion by the panelists of the key topics and issues in dispute.

There are several variations of hot tubbing depending on the wishes of the parties. An important factor for a successful hot tub, therefore, is for the parties to agree on the details of the process — for example, which topics will be covered and what level of questioning of the panel will be permitted by whom and when. That agreement will maximize the benefits of the hot tub for all parties.

For example, hot tubbing may involve either of the following forms, or some combination of both:

• a free-flowing forum in which a jointly selected decision-maker (or decision-makers) leads the panel in a discussion of the specific topics at issue. The decision-maker asks questions, and he or she invites legal counsel to ask their own questions either during or after the decision-maker’s questioning;
• a more traditional method in which each legal counsel takes turns at cross-examining the opposing panel witness and then examining his or her own witness for a rebuttal. This process continues until all of the evidence on the issues has been exhausted.

In either example, the panelists are invited to comment or rebut evidence presented by other experts on the panel.

Hot tubbing can be an improvement on the traditional witness examination. In particular, it offers the following benefits due to its unique features and flexibility:

• it saves time by merging the traditional steps of direct examination, cross-examination and re-examination;
• re-examination of a witness is unnecessary because each witness will listen and immediately provide a rebuttal to the other witness’s evidence;
• because all witnesses will be giving evidence on a specific issue at the same time, they need not repeat agreed facts and evidence;
• key areas of disagreement are more quickly identified because the witnesses are heard together (and thereby making resolution more likely);
• the decision-maker is more likely to receive full information and be able to quickly focus on a specific issue by posing detailed questions of the panel ;
• in the face of peer scrutiny, expert witnesses are less likely to embellish or add irrelevant detail in their answers (which may otherwise confuse a decision maker);
• where any inconsistency, ambiguity or confusion becomes apparent, the decision-maker or counsel can ask questions of the panel to quickly clarify the issue;
• the process is more efficient because an expert, based on his or her specific expertise, will be more likely (than would counsel) to effectively spot key technical issues and question the evidence of an opposing expert.

A concern of disputing parties with hot tubbing is that control over their evidence may be lost due to the free-flowing discussion of a panel format. A party may not have the opportunity to emphasize particular points or to make all the points that they would otherwise make in the more structured traditional examination and cross examination. This difference is because the evidence presented depends in large measure on the extent of participation by each of the witnesses. The quality of the evidence will also depend on the ability of the decision-maker to fully and properly explore all of the key issues.

Expert witnesses must be carefully prepared to participate in the hot tub, especially where they are used to the traditional “one by one” examination process. Unlike the usual examination, panel members in a hot tub must pay close attention to the evidence of opposing witnesses and be prepared to rebut that evidence effectively and to respond with their own position on the issue. This means that, for each party to present its case effectively, its witnesses must be prepared to take a proactive approach during the panel discussion. The witnesses have to be very familiar with all of the evidence and the issues and must be prepared to quickly respond to opposing positions.

The decision-maker must also be prepared to be more proactive. Traditionally, counsel assumes the primary role of examining the witness while decision-makers merely listen and weigh the evidence as it is presented. By contrast, a successful hot tub requires the decision-maker not only to be familiar with the principal issues in dispute, but also to take a proactive role in directing the panel discussion and in inviting counsel to ask questions. A decision-maker must also be prepared to intervene and ensure the discussion remains on point and ensure that both sides have a full and fair opportunity to present their case.

Hot tubbing is being used with increasing frequency in international arbitration and it is being recognized as a legitimate technique for the examination of expert witnesses.

As an emerging trend, it is worth consideration as a dispute resolution process, and it is a process of which professional designers should be aware. cce