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Cutting through the legalese: “Hot-tubbing”

Last week, I travelled to Heathrow Airport to meet with two representatives of my client who were flying in from separate locations, and our expert.  We were meeting to discuss design liability in relation to a significant six-figure claim that they are facing.  An hour or so into the meeting, after the energy from our airline quality lunch had worn off (and yes, it tastes just as bad on the ground), I managed to get everyone to wake up by simply asking “So are we all aware of what I mean by ‘expert hot-tubbing’?”.  Not everyone, so it seemed, was.  And the real image I conjured up was nowhere near as exciting to them as their first thoughts!

To de-mystify and reassure, when experts “hot tub” this is really just “concurrent evidence” – put simply, all the expert witnesses are questioned and cross-examined together in a conversation which includes all experts, Counsel and the Judge(s).  The procedure is recognised in the TCC Guide and the idea is that rather than dealing with each expert in turn, the parties can deal with each issue in turn, letting everyone have their say before moving on.  It is intended that this is more efficient, thus saving costs. 

Whether or not hot tubbing really is better than the traditional method is one that is the subject of much debate and in some TCC cases it seems that a hybrid approach is emerging.  Experts in TCC cases do need to be ready for hot tubbing, but at least they can do so with their suit safely on!

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These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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