Ho, Ho, Hot Tubbing!

For reasons best known to others I have been invited to be Santa Clause at events recently, do they even know the hourly rate for an expert witness? Luckily I have my own Santa Outfit, I can't possibly explain why in a professional blog but the ladies do like a man with a sack, according to Marilyn Monroe.

Fifty Percent of the kids I gift are excited to meet Santa, the other 50% are staring intently to work out who is behind the beard. Its fun for me either way. Be generous this season and help all kids have a good Christmas morning.

However, that's not the purpose of the post, just an excuse for a bad pun and a reason to display a picture of me as Santa Claus.

Last week a long standing friend and ex-colleague called me concerned about hot-tubbing with a well respected and experienced expert. My friend never wanted to be an expert, he wanted to be a back room quantum analyst but we needed a front of house quantum guy and so we pushed him outside of his comfort zone. For a decade and a half he has been testifying with honour, integrity and independence. But, hot tubbing worries him. Let me explain.

What is Hot Tubbing?

Witness Conferencing has been a tool available to arbitrators and others for many years. My first Hot Tubbing was in the nineteen nineties when a panel we were assisting were thoroughly confused as to why two planners arrived at such disparate EoT recommendations. In the Hot Tubbing I was able to explain, in a way cross examination had been unable to do, that the methodology explained in the opposing expert's report was not the methodology actually used by the expert. He reluctantly agreed and the Tribunal then understood the differences.

I have experienced Hot Tubbing in the USA, the Middle East and in Europe, it is often helpful as the two experts are invited to discuss the case in front of the tribunal, it usually exposes flawed claims, unreasoned opinion and poor analysis, and so is in demand.

The idea is that the experts can agree facts, methodologies and findings directly in front of the Tribunal with no input from intermediaries, who may inadvertently colour the evidence, and it is this exposure that worries some experts. It shouldn't worry any of us if we go into a witness conference to defend an honest report.

The whole conferencing experience is draining and of course is taking place under oath, so it produces some exacting results. I have had two cases settle in full after a witness conference and before the Tribunal started to write their award.

What is there to fear?

Well some people are naturally nervous, even with a good case, they stumble, they go blank, they repeat themselves and are acutely aware of the staccato nature of their exposition. Don't worry, I've been doing this for over thirty years and still get nervous. I speak in public, and answer awkward questions from Kid's about living at the North Pole not Lapland, but still occasionally stutter in witness conferences.

Here are some tactics to watch for in Hot Tubbing, they are designed to unsettle you or make you reluctant to be completely honest. Ignore them and tell the whole truth, the opposing expert will get over it, or they won't.

"Please don't embarrass me?" The opposing expert may have an obvious flaw in their reasoning, one that you can see as an expert but which is not obvious to others. They clearly will not want to be humiliated by this being revealed in conferencing and so my answer is this.

"You take a moment to explain the error/consequences at the start of the session and I will gracefully accept that the error was made in good faith and that we have agreed a correction."

If they do not agree you must be truthful, even if it causes hurt feelings.

"I've been doing this for years... here's what we'll do..." The opposing expert may be a leading figure who you respect but in conferencing you cannot afford to be in the least subservient. You must represent your best opinion and defend it robustly. Occasionally an experienced expert will try to persuade you that you two are a team, a team confronted by lawyers, clients and a Tribunal. You're not. Its a ploy. You are an independent expert with unique insights, carefully guard them and be bold.

"We cant go in with these differences, let's compromise on some items." There are times in joint reports and in witness conferencing when it is in everyone's interests to reach agreement on insoluble issues. Mostly however, you should have a firm opinion that you must champion and allow the Tribunal to decide. If you do need to compromise some less valuable issues that may otherwise be very expensive and contentious to resolve, then ensure that the Tribunal are made aware that in addition to your stated position, a compromise could be made in this manner. Then the Tribunal have all the facts.

"Here is where you went wrong." This often happens after professional and other exams. You gather and a confident voice explains the real answer to the compulsory question that carried 40 marks, your heart sinks, you misunderstood the question and thus answered improperly, all is lost. This happened to me in the RICS finals at Liverpool University a decade or so ago, (or possibly nearly five decades ago). I turned out to be right and the three others had been wrong. Stand up for your opinion, check it and verify, but then stand up and do not be derailed by this cynical tactic.

We can all love Hot Tubbing.

Once you have rehearsed with a reliable and robust colleague, not just a lawyer, you can be confident of your performance. You are more persuasive than you give yourself credit for, and Tribunal love certainty.

As this may be my last post before Christmas let me wish you all health, happiness and joy in your families and in your work spaces. Celebrate one or more of the various holiday traditions associated with your heritage, beliefs or geography. Take time for yourself, relax and remember to give your time to those you love and who love you.

If you are not feeling the mood, talk to someone, tell them how you are feeling, let them lift you. Good mental health is a necessity in this business as is time to unwind, recuperate and restore.

Merry Christmas from me and mine.

Jeff Whitfield LLB FRICS MCIArb is a Director at Rimkus and a Testifying Expert Witness.