The Times: Expert witnesses given a lighter grilling in online hearings

Related Sector: Expert Witness

A survey shows that barristers are less aggressive during remote court sessions

Barristers are less aggressive in cross-examination during remote hearings because the “theatre” of the courtroom has been removed, expert witnesses have revealed.

In a survey for Bond Solon, a leading training organisation for expert witnesses, more than 40 per cent of those who had been cross-examined in remote hearings during the coronavirus pandemic said that the approach of barristers was less forceful.

“It is more difficult for the cross-examining lawyer to control the flow of the courtroom encounter online,” says Mark Solon, the solicitor-founder of the organisation, who adds that barristers “may also have found aggressive courtroom dramatics do not actually work online. A booming voice, intimidating stare or a look of disbelief appear silly on a small screen.”

Solon warns that, in future, advocates “may need a more forensic approach and find more screen-appropriate methods of disconcerting a witness to discredit their evidence. They will need new online advocacy skills and experts will have to keep up.”

The researchers found that about half of the experts who had given oral evidence online were of the view that it was given the same weight as in a live hearing. 

Solon says that, ironically, the drawbacks of the technology may have contributed to increased attention. “This may be because a judge or jury needs to be very attentive as the image of the witness is in two dimensions and looks much smaller than when seen in person in the courtroom, and the sound may not be as clear,” he speculates.

Nonetheless, courtroom experts are adamant that improvements are needed if the digital revolution in the courts — accelerated by measures to combat the effects of the pandemic — is to continue without damaging justice.

Solon says that it is crucial that “the technology used by courts is of high quality so those involved can hear and see clearly. Interruptions by an impatient cross-examining lawyer also appear ruder on a TV monitor, and lawyers may have learnt to be silent as a witness speaks, and this could give the impression to the witness that their evidence is given greater weight.”

The survey results come amid persistent concerns over the quality and ability of some expert witnesses. Some of the most notable recent criticism came in the High Court in April, when Mr Justice Fraser said in a professional negligence claim that an expert involved had been guilty of embellishment and exaggeration.

The judge found that under cross-examination an expert had relied on material that had no relevance to points at issue in the trial and, crucially, lacked objectivity. The judge also said that the expert adopted an entrenched position on a contested issue of fact and did not alter his opinion at all, even after the evidence had been given.

And a Court of Appeal case in February was also embarrassing for the Crown Prosecution Service after the three judges sharply criticised it and its expert, Andrew Ager, in R v Byrne.

The court did not find that the criminal convictions being appealed against were unsafe, but it did describe the expert as having engaged in “egregious behaviour”. The ruling said that the individual had a “clear preparedness . . . to disregard his basic duties as an expert”.

Criminal cases involving criticisms of experts attract the most attention, but the vast majority of hearings involving expert evidence are in civil cases. Nearly 80 per cent of respondents to the Bond Solon survey said that they are mostly instructed on civil disputes. Nearly 13 per cent of experts said that they focused on criminal cases, while about 9 per cent were mostly involved in family hearings.

The survey also found that experts say that there are considerable practical advantages, in terms of lower costs and greater convenience, in the use of remote hearings.

During the pandemic more than 60 per cent of the experts surveyed conducted about half of their work remotely. Solon describes that as a “seismic shift from before Covid. It has implications for how investigations and examinations are conducted, how instructions are taken and how evidence is given.”

It can be argued that, once travel and accommodation costs are eliminated in some cases, those savings could be reflected in overall budgeting.

“This also means that the time saved can allow the expert to have more time for their day job and the ability to take more instructions,” Solon says before warning that the overriding issue with remote working is “whether experts can do as good a job as they used to”.

Read the article on The Times website

Download the the Annual Expert Witness Survey Report 2021

Author: Jonathan Ames
This article was first published on Thursday November 04 2021 by The Times.