One of the speakers at the recent Expert Witness Forum in Toronto, Dr. Ruth M. Corbin, referred me to a\u00a0detailed description\u00a0of\u00a0the “hot-tub” method of dispute resolution that she had written.\u00a0(Ref. 1, see also 2)\u00a0 “Hot-tubbing” is\u00a0legal jargon for\u00a0a concurrent expert evidence process, and apt jargon at that.\u00a0 Experts for all parties to a dispute get together in a court room and talk it out.\u00a0 The method reduces court time and\u00a0civil litigation costs involving experts, and increases objectivity.<\/p>\n
Australia, where it originated, New Zealand, Britain and Canada are relying on\u00a0the process\u00a0more and more.\u00a0 Other countries are taking an interest.\u00a0 Adversarial America?\u00a0 Not so much.<\/p>\n
The method involves experts, with their individual forensic reports for different parties, meeting together\u00a0in court before a judge\u00a0and\u00a0agreeing on a single expert report on the problem.\u00a0 There is also a variant of the “hot-tub” process suited to other forms of dispute resolution outside a court.\u00a0 This would be like a pre-trial conference and is usually in the absence of lawyers.<\/p>\n
Seeing as more than 90% of disputes are settled out of court, and close to 100%\u00a0for some types of problems,\u00a0there is lots of opportunity for\u00a0this method to resolve disputes.\u00a0 Interest in a variant of “hot-tubing” is certain to increase in light of the Jordan decision by the Supreme Court of Canada last year.\u00a0 The decision\u00a0will\u00a0further delay the hearing of civil litigation cases in court, at least in the short term.<\/p>\n
To me, “hot-tubbing” is little more than a consensus-building process.\u00a0 Experts do their individual forensic\u00a0investigations, analyse the data, draw conclusions\u00a0and formulate an opinion.\u00a0 They then sit down together, peer review\u00a0each other’s work, discuss the issues and\u00a0reach a\u00a0consensus\u00a0on the cause of the problem.\u00a0 Expert’s just want to solve the problem,\u00a0explain\u00a0the issues\u00a0in simple\u00a0language\u00a0and get onto the next problem, particularly technical experts.\u00a0\u00a0Most of us are\u00a0not adversarial by nature, nor hired guns by a long shot.<\/p>\n
Ruth’s paper is a good read in plain English with\u00a0practical descriptions and examples of “hot-tubbing” in action.\u00a0 The guidance and comment in her paper gets you almost to\u00a0the point where you\u00a0just might be able to\u00a0do it yourself.\u00a0 If not enough guidance, you can review any number of the 73 references and citations\u00a0Ruth includes in\u00a0her paper.<\/p>\n
The “hot-tub”\u00a0method is well developed in relying on the consensus building\u00a0nature of\u00a0experts.\u00a0 But it’s not perfect as Ruth points out in three different ways.\u00a0 One embarrassing defect is that development of the “hot-tub” method – to reconcile differences among experts – had little input from experts!<\/p>\n
I can’t help but wonder if\u00a0the cause of some\u00a0of the\u00a0civil litigation that is being resolved by “hot-tubbing” is\u00a0because experts\u00a0were not involved in the merit assessment\u00a0stage of\u00a0the cases, another embarrassment.\u00a0 We get retained months or\u00a0years after a case is taken and after the cost of the technical expert’s work is estimated by a non-technical person.<\/p>\n
The omission of input by experts in development of the “hot-tub” method is recognized by\u00a0people like\u00a0Ruth M. Corbin and will be corrected over time.\u00a0 Possibly this will be reflected at the merit assessment stage of a case and further reduce the load on the court system.<\/p>\n
(Some of the comment in the above is taken from Dr. Corbin’s\u00a0paper)<\/p>\n
References<\/strong><\/p>\n (https:\/\/s3.amazonaws.com\/ci-presentations\/378L18-TOR.zip<\/a>)<\/p>\n\n\n (Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada. ejorden@eastlink.ca<\/span><\/strong>)\u00a0 \u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" One of the speakers at the recent Expert Witness Forum in Toronto, Dr. Ruth M. Corbin, referred me to a\u00a0detailed description\u00a0of\u00a0the “hot-tub” method of dispute resolution that she had written.\u00a0(Ref. 1, see also 2)\u00a0 “Hot-tubbing” is\u00a0legal jargon for\u00a0a concurrent expert … Continue reading \n