Settle Your IP Dispute in a Hot Tub
Get ready for a radical new idea. One that:
- suggests the search for accuracy should trump a fully adversarial process;
- would wrest some control of the litigation and trial process from the hands of the attorneys; and into the care of the experts; and,
- just might focus IP litigants on the fact that they have a business problem burdened with justice issues rather than a legal problem that frustrates business operations.
(image from Wikimedia Commons)
Not surprisingly, a litigation process that threatens or promises these results does sound like litigation at all -- you know -- battle, war, fight. Rather, it sounds like a summer spent in Big Sur among the redwoods, sitting on the edge of the Pacific Ocean with the parties, the judge, the jury and the attorneys in a . . . . HOT TUB!?!?!?!
My (fabulous) new iPhone New York Times app this morning delivered the following paradigm busting proposal -- a "preferred a new way of hearing expert testimony that Australian lawyers call hot tubbing." In American Exception -- In U.S., Experts are [gasp!] Partisan, Adam Liptak explains:
In [a] procedure . . . called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. In the Wilkins case, by contrast, the two experts “did not exchange information,” the Court of Appeals for Iowa noted in its decision last year.
Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”
What kind of cases has this process been used for?
In a dispute over the boundary of an Australian wine region, for instance, “there were lots of hot tubs — marketers, historians, viniculturalists,” said Gary Edmond, a law professor at the University of New South Wales in Sydney.
The Drawbacks?
Professor Edmond said hot tubbing in Australia had drawbacks and was “based on a simplistic model of expertise.” Judges think that if we could just have a place in the adversarial trial that was a little less adversarial and a little more scientific, everything would be fine,” Professor Edmond said. “But science can be very acrimonious.”
The Systemic Response Elsewhere?
Though no one expects this process to be imposed upon the American legal process, experts in the Mother Land are calling for "radical measures" to
to address “the culture of confrontation that permeated the use of experts in litigation.”
The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills.
Just as you were saying "American lawyers wouldn't allow it," Liptak reports that
[t]here are no signs of similar changes in the United States. “The American tendency is strictly the party-appointed expert,” said James Maxeiner, a professor of comparative law at the University of Baltimore. “There is this proprietary interest lawyers here have over lawsuits.”
But we're fooling no one, particularly not ourselves. It was Melvin Belli, after all, who once said “[i]f I got myself an impartial [expert] witness I’d think I was wasting my money.”
It's no surprise to us that
Judges and lawyers agreed, in separate surveys conducted by the center in 1998 and 1999, that the biggest problem with expert testimony was that “experts abandon objectivity and become advocates for the side that hires them.”
The Academic View from My Own Backyard?
Jennifer L. Mnookin, a law professor at the University of California, Los Angeles, who recently wrote about expert testimony in the Brooklyn Law Review, [said] “neutrals risk being a sort of false cure” because “there are often cases where there are genuine disagreements.”
The future, Professor Mnookin said, may belong to Australia. “Hot tubbing,” she said, “is much more interesting than neutral experts.”
Interesting to a law professor perhaps, but interesting is not what litigators and trial attorneys are looking for.
For further coverage and comment by the usual suspects over at the Wall Street Journal Law Blog read Experts in Hot Tubs? Not Here in the U.S. of A.
