Would Australia’s “hot tubbing” approach to expert evidence work in Canada?

Legal Ethics Forum questions whether it would work in the United States.

Legal Ethics Forum’s Rob Vischer refers to a New York Times article published August 11, 2008. That, in turn, refers to a speech by Justice Peter McClellan of the Land and Environmental Court of New South Wales, Australia.

Canadian lawyers should find the Australian approach particularly intriguing. Several jurisdictions are in the process of revising their civil procedure rules. The treatment of expert evidence figures largely in those efforts.

In Alberta, the approach to expert evidence appears to be more traditional. Although Ontario is not presently in a formal revision process, their approach is likewise more traditional.

Under Nova Scotia’s proposed new Civil Procedure Rule 55, experts’ written reports will have to contain statements to the effect that:

(a) the expert is providing an objective opinion for the assistance of the court, even if the expert is retained by a party;

(b) the expert is prepared to apply independent judgment when assisting the court;

(c) the report includes everything the expert regards as relevant to the expressed opinion and it draws attention to anything that could reasonably lead to a different conclusion;

(d) the expert will notify each party in writing of a change in the opinion, or of a material fact that was not considered when the report was prepared and could reasonably affect the opinion.

In British Columbia, the approach to expert evidence under the proposed new rules is similar, in some ways, to Australia’s approach. While there would not be concurrent evidence at the trial, experts will have a duty to assist the court and not act as an advocate for any party. They will be required to certify that they are aware of this duty, that they have prepared their report in conformity with that duty, and that their testimony in court will also be in conformity with that duty.

While the parties will still be free to appoint their own experts, if 2 or more experts are to give evidence on the same question during the trial, they must confer and set out in a report the points upon which they disagree.

The Nova Scotia approach seems somewhat naïve. Whether an expert will, in any meaningful way, draw attention to the weaknesses of his or her own opinion seems unlikely. The problem is compounded by the fact that Nova Scotia’s new Rules do away with any oral pre-trial examination of witnesses. One hopes that this will be corrected prior to implementation.

British Columbia’s new Rules appear to do outside the courtroom what New South Wales tries to accomplish at trial.

I am interested in hearing from members of the Bar in New South Wales, Australia as to how the process of concurrent expert evidence has been received, and what the experience has been from the Bar’s point of view.

I am cross-posting this article to my insurance law blog, The Insurance Lawyer, since this is obviously something of interest to insurance lawyers, who are often called upon to deal with expert witnesses.

All (reasonable) comments will be posted.