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Picture Your Forensic Accountant in the Hot-Tub….

Member: Nifa

…And Ask Yourself How You Feel About the Mental Image You Have Conjured Up.

It seems likely that the giving of concurrent evidence by expert witnesses, so-called ‘Hot-tubbing’ is likely to become ever more common, not least because the experience of the courts is that it saves considerable judicial time and, as the Ministry of Justice is all too keenly aware, time is money.

Instructing solicitors therefore need to give some thought to how they think proposed expert witnesses are likely to perform in the Hot-tub. Cross-examination can be a daunting prospect for some but those who are likely to perform best in the Hot-tub will need very particular character traits.

The traditional scenario in which a lawyer cross-examines a forensic accountant pits an expert in one discipline (law) against an expert in another (accountancy). There is therefore always the prospect that the accountant will be able to bamboozle whoever is cross-examining him or her. Such a scenario is unlikely in the Hot-tub in which accountant is pitted against accountant.

By giving evidence simultaneously, direct comparisons will inevitably be drawn between two opposing experts and whichever is able to give the most cogent and convincing evidence is likely to overshadow his or her counterpart.

Hot-tubbing may therefore appear to be a less formal and more relaxed format than traditional cross-examination but experts who let down their guard will do so at their peril. The key, as ever, is to ensure that you choose an expert on whom you can rely to master the evidence and deliver a persuasive unbiased opinion founded solidly on the facts.

Author: Roger Isaacs, 14th November 2012

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