10 frequently asked questions
by Paulius Docka, FCIArb
Even a modest technology-related dispute might easily become a nightmare for parties involved. The parties almost each time are dragged into lengthy and expensive proceedings.
Technology-related litigation inevitably requires involvement of a technology expert. Even if the party picks the best arms, in many jurisdictions lawyers and experts still have to perform in front of a judge, who is usually not a technology guru. It also might be a case that the judge deals with technology issues only from time to time.
Therefore, arbitration is the most proper dispute resolution forum for technology-related cases. Besides parties’ discretion to select arbitrators, arbitration has even more advantages.
Taking into account that courts and arbitrators have become more skeptical of the ever-increasing number of expert witnesses parading into trials, expert conferencing or hot-tubbing might be used to improve the quality of resolution of the technology-related disputes.
Below I have outlined ten frequently asked questions about hot-tubbing, its process and effects.
Q1: What is hot-tubbing?
Hot-tubbing or concurrent evidence is a method of giving evidence where experts give evidence simultaneously and the court or tribunal leads a discussion between them.
Q2: What are the main goals of hot-tubbing?
The main goals of expert hot-tubbing in technology-related arbitrations are as follows:
– saving trial time;
– improving the quality of expert evidence;
– assisting the court to determine disputed issues of expert evidence; and
– saving costs.
Q3: How does hot-tubbing work?
Each tribunal may set specific rules for preparation for hot-tubbing or hot-tubbing itself. However, there are four basic steps:
– Each technology expert witness prepares an individual report;
– Technology experts confer with each other without lawyers;
– Technology experts submit joint report, stating which issues are agreed and which ones are disagreed on;
– Experts testify (almost all the time by discussion) in front of the tribunal.
Q4: Does hot-tubbing improve quality of expert evidence?
Hot-tubbing enables experts to ask each other questions, answer the questions and most importantly, to respond to each other’s opinions. It assists the tribunal in understanding technology matters.
There are more possibilities for experts to exchange their authentic opinions with their professional colleagues in the same field during challenges. The experts tend to moderate their extreme opinion when they have to justify it in front of another expert.
Moreover, experts are also less likely to make deliberately false statements when challenged by their peers for fear of being caught out and associated reputational damage.
Q5: Is hot-tubbing attractive to experts?
Experts have occasionally expressed concern that giving evidence in an adversarial context, unlike the hot-tubbing, does not allow them to assist arbitration in the best way possible. Giving evidence in adversarial context does not create opportunity for the expert and tribunal to properly assess competing opinions.
There is growing concern that experts are reluctant to get involved in court or tribunal proceedings because of the risks of cross examination by a hostile lawyer.
Hot-tubbing or just a discussion with professional colleague might be more acceptable for technology expert, even if it’s done in front of tribunal.
Q6: Do you need specific expert for hot-tubbing?
Well conducted hot-tubbing is more like a discussion, and there are less “controlled” arguments. Therefore, the hot-tubbing may require an expert who is more persuasive in his presentation of views and peer-to-peer discussion.
Q7: Is hot-tubbing attractive for tribunal involved in technology dispute?
Experience shows that it is easier for tribunal to recall and understand the positions of technology experts by hearing the evidence simultaneously and sequentially.
Secondly, the concurrent expert evidence technique certainly diminishes the direct control of trial counsel and increases the flexibility and genuineness of the expert.
It is common experience that conflicting opinions expressed in different expert reports can become less contradictory and mollified when the experts are brought together to draft common report or participate in discussion. Moreover, as it has been already mentioned in Q4, the experts tend to moderate their extreme opinion, when they have to justify it in front of another expert.
Above mentioned factors might help the tribunal to narrow the circle of disputed technology issues and get joint views of different experts regarding the questions present. This is very important in technology related-disputes and saves time and energy of the tribunal.
Q8: Does hot-tubbing require specific arbitrator?
First of all, let’s not forget that hot-tubbing is only part of the arbitration proceedings, thus the single stage of the case usually does not affect choice of potential arbitrator. Obviously, technology related dispute goes ahead smoothly, if the arbitrator is more or less aware of technology in dispute or main principles of resolving technology related dispute.
However, as it is discussed herein the success of the hot-tubbing depends whether arbitrator has sufficient familiarity with the subject-matter to lead the discussion and ability of arbitrator to chair in the discussion between to experts.
Q9: Is hot-tubbing attractive to counsels?
Hot-tubbing is significant intrusion into adversarial system, because this exercise involves judge or arbitrator questioning the experts, rather than a counsel.
Counsels are not excluded from the process in hot-tubbing, but they do not play the same dominant role that is historically associated with trials. Concurrent evidence facilitates the process of cross-examination because counsel can immediately encourage responses from either expert with respect to the matters in question. The counsel can also be confident that any misinformation will be quickly exposed because statements can be corroborated or clarified by their own expert.
Q10: How to ensure the best outcome of hot-tubbing?
Firstly, hot-tubbing is effective when the experts being questioned are of similar level of seniority. This issue is even more critical in some regions due to cultural differences. The expert might be deferential to a more senior colleague. Therefore the rule number one is stick to experts of similar level of seniority and professional background.
The second key is awareness of the arbitrator or the judge about the topic under discussion. While opting for arbitration parties have discretion to appoint arbitrators having significant experience in the field related to the dispute.
The third important issue is due management of witness conferencing. It is very important to handle the discussion in a way so that the experts have equal opportunities to address the issue. It is also important to manage the flow of questions and issues under discussion.
Instead of conclusion
It has been noted that the adoption of hot-tubbing leads to higher likelihood of dispute settlement between the parties.
The reason for that is that witness conference allows the parties to identify the issues and merits of parties respective positions with much greater clarity than usual witness cross examination.
Paulius Docka, FCIArb
Attorney-at-Law / Advokatas