Adam Liptak has a fascinating article in this morning's NYT about the move in Australia to diminish the opinion-for-hire quality of expert testimony. In a process called "hot tubbing," or more primly, "concurrent evidence," experts testify in a format that sounds more like a panel at an academic conference than a trial. Both sides' experts apparently are "on the stand" at the same time; they interact with each other and ask each other questions, as well as responding to questions from counsel and the judge. This allows the experts to say what they really think, as opposed to sticking to the script prepared by lawyers, who try to steer them away from mentioning any weak spots in their client's case. Apparently, most trial lawyers hate it. Duh.
[An aside - in what seems like a similar move, congressional committees now sometimes conduct hearings in a roundtable format. The basic idea is the same: less time spent on formal statements, more informal exchange. See Senate committee hearing on ADA Amendments Act. ]
Hot-tubbing strikes me as an immensely appealing idea, although I have a variety of concerns, most of which I will skip at the moment. Not being a trial lawyer (although I sometimes play one in the classroom), I can't draw on my own war stories here. But one issue that I'm currently thinking about is the frustrating state of the research on the quality of gay parenting. In many of the challenges to marriage and adoption laws, judges have been asked to evaluate competing arguments about whether it is reasonable to base a statutory classification or exclusion on the premise that children are less well off with gay, rather than straight, parents.
I won't even begin to go into all of the issues and problems. But one big one is, assuming a fair-minded judge, which experts does she believe? Hot-tubbing won't eliminate the situation in which scientific evidence strongly favors one interpretation of reality (tempted to place that word in scare quotes!), but there remains some support for another interpretation. Perhaps two professionals in a given field have a better shot of embarrassing each other by calling out exaggerations than occurs in the standard cross-examination context. And possibly a practice of using only experts who can – and are willing to – engage directly with a professional peer would raise the quality of the evidence. [Of course, there is, as always, a caveat - it could also introduce new incentives not related to quality.]
In situations like the gay parenting field, in which one cannot say that there are no legitimate disputes, but one can say that no scientific evidence supports the belief that the quality of parenting differs based on the sexual orientation of the parents – I wonder if hot tubbing the experts could help force judges to face facts that many of them, apparently, simply want not to believe.
At a deeper level, the proposal raises questions about the relationship between legal facts and social facts, and about how the legal system does or does not seek "truth." In any social change context, lawyers face the challenge of how to get judges to "see" "new" "facts." Suzanne Goldberg has written about this dynamic in an article analyzing "normative facts." Hot-tubbing would do nothing to change the fundamental struggle over re-describing reality that goes on in such litigation, but it might alter the tempo of the underlying dance.