In the May 25, 2023 edition of Division 1’s Toolbox Talk Series, Marcus Quintanilla, Dr. Joe Rakow, and Michael Martin had a lively discussion about strategy for expert conferencing. Expert conferencing (often referred to as “hot tubbing”) is a format for experts to present evidence simultaneously and in each other’s presence to the arbitrators or judges, who often question the experts and facilitate discussion between them.
Quintanilla emphasized that the first consideration upon learning that a trial or arbitration will utilize expert conferencing is selecting the right expert. Flexible experts able to take a more holistic view of the case and embrace advocacy tend to perform best. On the other end of the spectrum, experts with an overly combative demeanor tend to be less effective.
Another key piece of advice was
to provide the expert witness the necessary background to offer compelling
evidence and be flexible. Martin and Rakow both stressed that the expert needs
to understand not only the expert reports, but also how they fit into the
entire strategy of the litigation team. Without an attorney directing traffic
via questioning, experts need to have their own roadmap. Quintanilla suggested
involving the experts in the preparation of the opening statement/presentation
to assure there is collaboration in crafting the narrative and detailing what
evidence will be put forward. This involvement also provides experts with an
opportunity to highlight issues of concern and correct any technical
misstatements. A united plan on how to address areas where the expert opinion
has less support or is prone to counterarguments is vital. Martin prefers to “play
defense by playing offense first” and address those sticking points
preemptively.
Once the hot tubbing begins,
Martin and Rakow both called attention to the importance of experts establishing
rapport with each other. Whether the presentation of evidence begins with a
presentation from the expert (which was the strong preference of all three panelists),
questioning from attorneys, or questions from arbitrators/judges, building
rapport is crucial. Despite expert conferencing having the potential to be more
adversarial than offering opinions through a direct examination, experts should
focus on disagreeing respectfully and remembering that any dispute is a
professional issue about facts and truth rather than a personal attack. Even if
minor, experts should try to find some area of agreement to use as a building
block. The most effective hot tubbing of experts eventually evolves into a
conversation between experts.
Finally, Quintanilla advised that
all parties involved, and attorneys in particular, need to relax and allow the
process to play out, embracing that it is inherently a flexible method of
presenting expert opinions that will vary from proceeding to proceeding.
Generally, he finds that the process makes experts more credible to judges/arbitrators
and their opinions more impactful.
Thank you to Marcus, Joe, and Michael
for the insightful commentary on hot tubbing experts.
Click here to view the discussion in its
entirety.
Author Douglas J. Mackin is
a construction attorney with Cozen O’Connor in Boston, Massachusetts. Douglas
counsels owners, developers, contractors, and subcontractors in all phases of a
construction project, from contract negotiation through to completion,
including disputes, litigation and arbitration. Douglas can be contacted
at dmackin@cozen.com.
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