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The hot topic of hot tubbing

|Written By Robert Todd
The hot topic of hot tubbing

Proposed rule changes for expert testimony at the Federal Court have IP lawyers all hot and bothered.

Few areas of law rely on expert evidence as significantly as intellectual property. Patent cases, for example, hinge on an interpretation from a person “skilled in the art” — someone with technical knowledge in the area to which the patent relates. Counsel rely heavily on experts when shaping their cases, and litigants pay a steep price for their knowledge. So it’s no surprise IP lawyers have furrowed brows over a series of proposed Federal Court rule changes that could transform how experts interact with the court.


Details of the proposed amendments were published last fall in part one of the Canada Gazette. The proposals signal the Federal Courts Rules Committee’s desire to reel in expert testimony, as expressed in a regulatory impact analysis statement. The statement refers to the “misapprehension of the role of expert witnesses” that may be prompting them to advocate on behalf of one party.

The statement suggests that could hurt the reliability of witnesses, detracting from the utility of their evidence. It also criticized current practices involving experts for sucking up too much court time and thereby driving up costs.


The committee views concurrent expert evidence — or “hot tubbing” — as a panacea. The process has been used in some Australian courts, and was rolled into Canada’s Competition Tribunal Rules. It sees experts testifying on the same issue sworn in together before taking questions from counsel, the trial judge, and even each other. The Federal Court’s proposed rules, however, would allow such experts to pose questions to one another only with leave from the court.


Another notable proposal would see experts adhere to a code of conduct that would help them “understand their independent advisory role to the court,” according to the statement. Yet another key change would give the court discretion to force expert witnesses to confer before a trial. Discussions and documents included in the conference would be confidential and kept private from the court.


While the rules committee sees the recommendations as a surefire solution to partisan experts and rising court costs, IP lawyers say the proposals could actually exacerbate the problems. Grant Lynds, chairman of the Intellectual Property Institute of Canada’s litigation committee, says the proposals for expert pretrial conferencing and hot tubbing have been overwhelmingly panned. “I haven’t encountered anybody who thought these were a good thing,” he says. “Which is rare, to get that kind of consensus among a body of lawyers that represent all different areas of IP.”


Andy Radhakant, of Heenan Blaikie LLP, admits the Federal Court is on to something in terms of expert evidence spiraling out of control. It’s clear, he says, that witnesses must be pulled back to a more neutral position. But he too fears the proposed rules run counter to that goal.

“Situations in which experts are permitted, or in fact required, to confer together or to question each other naturally lead to situations which favour experts who are loud, aggressive, partisan, and maybe even a bully,” says Radhakant. He even suggests parties may go out of their way to find experts with assertive personalities and a penchant for spirited advocacy. “That is worrisome against the backdrop of the stated goal of the court, which is a worthwhile goal.”


Radhakant also has a more basic concern with the proposals to change how expert evidence is handled at the Federal Court. Never before have experts had the opportunity to challenge one another, and have previously been restricted to answering questions from lawyers through examination and cross-examination.


At the same time, Canada’s justice system has been applauded for the clear separation between the role of the judge as neutral decision-maker and counsel as advocates for their clients. Lawyers are worried that by ordering expert hot tubbing against the will of one or both parties, judges may blur that line. Especially, says Radhakant, if the judge is permitted to pose questions to the panel members.

“This could have serious effects on the well-deserved good reputation that our justice system has,” he says. What happens, wonders Radhakant, if a judge asks a question that a lawyer would have objected to if posed by opposing counsel? “Is the judge going to have to rule on the propriety of her own question?”


Ogilvy Renault LLP partner Judith Robinson also laments the hot tubbing proposal’s departure from custom. “In our legal tradition, the order of legal presentation and how the case goes in at trial is part-and-parcel, I think, of a party’s rights in terms of controlling to a large extent the manner they want the story to go in,” she says. Robinson is optimistic, however, that judges will refrain from forcing expert panels on unwilling parties — even though the proposed rules make way for exactly that.


What seems to concern Radhakant most is what the proposed rules could mean for patent cases, which he describes as a “finely choreographed dance.” The introduction of pre-trial expert conferences could create havoc in terms of trial co-ordination, he suggests. “Can you imagine the added expense and logistical complications of a pre-trial expert conference involving, for example, all of the accountants, or all of the chemists, or all of the psychiatrists?

That is an entirely new expense . . . and it would be an enormous expense.” It’s already difficult enough, says Radhakant, to get experts together to testify one after another. The new expense could also create a competitive advantage for deep-pocketed litigants, he suggests. Costs could also soar if experts must stick around to participate in a hot-tub panel after submitting their fact evidence. Litigants will have to foot the bill for that downtime.


Meanwhile, the Rules of Professional Conduct restrict lawyers from communicating with their experts while they are being examined. That means IP litigants may also face the added expense of retaining consulting experts throughout a trial. Their expertise would be called upon if another expert is unavailable to a lawyer because he or she is testifying on a panel. “I may be denied access to my own accounting experts for the duration of that panel,” notes Radhakant.


Turning to the proposal for confidential pretrial conferences among experts, Donald Cameron, of Cameron MacKendrick LLP in Toronto, says this change aims to narrow issues before trial. There are fears that this proposal too would embolden the partisan stance of experts. They will go into the conferences with their own scientific beliefs, but may pack along the legal theories of the side they are acting for, he says.


Another strategy imported from Australia may prove more fruitful, suggests Cameron. There, aggressive pretrial conferences are held to inform a judge of key issues. The judge can also probe parties to see how firmly they hold various arguments.

“That’s allowed them tremendous success in saying, ‘What is this case really all about, counsel?’ early on, before the trial occurs, and thus narrowing the issues, and the length of trial, and the number of witnesses, etc.” He suggests an off-the-record tutorial for judges before trial could also help streamline cases. The amount of technical evidence judges face on many IP cases leaves them trying to “take a drink from a fire hose,” he notes.


On the whole, Robinson is keen to focus on the rule changes she views as positive steps. She applauds the rules committee’s recommendation to have counsel agree on qualification of experts before they appear at trial. That could snip up to a day of trial time, as it previously took over an hour to introduce each witness’ professional background.


She also likes the proposal to reduce the number of witnesses, and a move to give judges discretion to shorten testimony on redundant points. “Those are all very real, maybe smaller-step-type changes that can be brought about both through the amendments as proposed and just some of the current practice. I think the hot tubbing is getting everybody’s attention because it is a bit radical, and it’s got a great name,” she says.


Osgoode Hall Law School professor Janet Walker, common law adviser to the Federal Courts Rules Committee, says the group pondered many of the concerns lawyers are raising. She suggests some of the fears focus on situations that are unlikely to arise in practice. It will be rare, for example, to see expert pretrial conferencing involving a pair of experts alone in a room without a judge or counsel, and against the wishes of parties.

Even so, she says that eventuality has been tempered by the requirement that it be in the “interests of justice.” The code of conduct for experts will also help guide such a meeting, she suggests, as it emphasizes the requirement to act in an independent and objective manner.


Walker admits the committee’s most lively discussions surrounded the proposal for hot tubbing. The chief outcome of that rule is the availability of a new range of options for the provision of testimony, she says. “It’s very helpful, I think, to have encouragement of the rules to have parties actually take it up.”


The committee opted against the potentially more controversial option of permitting court-appointed experts. “We just, frankly, couldn’t work out how that would fit well with our system. How would the court know who to appoint, and what questions to put?” Court-mandated single joint experts were also ruled out.


“We hope we got it right,” says Walker, reflecting on the full spectrum of proposed amendments. “I think we were quite careful to try to avoid situations that could be very troublesome, and we’ve been relatively prudent and cautious in the way that we’ve introduced the initiatives. We are optimistic that they will be helpful.” 


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