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The expert witness in the “remote” post-pandemic world (if we ever get there)
- Sep 27, 2021
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by Alec Samuels
Will we get back to much as we were, having survived the pandemic? Or much as we were, but with some slight technological modifications? Or completely different, all remote, nothing real? Or some sort of hybrid or combination? In any event, the expert will have to maintain high standards of expertise, in practice or retired (but still clearly keeping up-to-date), and in addition to maintaining high standards of expertise in report writing, presentation, conferring with the other side and performing persuasively in the witness box, both remote and real, whichever and both.
Civil cases, and family cases, could be conducted completely remote, whereas in serious criminal cases an element of real will continue as inescapable, unavoidable, imperative. The jury have to be all together, in person. Everything else theoretically could be remote. But the judge may well insist on real attendance in the courtroom by the jury, by the principal witnesses as to fact, and quite probably the experts where there are significant or critical differences (as is very likely to be the case in a contested case). Remote witnesses could avoid a long and difficult journey. Experts could avoid a long wait waiting to be called into court. The advocates will want to be there (they are actors remember) to examine and cross-examine, to get a sense of how the judge is thinking, and directly in person to address the jury with their felicitous and persuasive words and engaging advocacy. So the decision whether real or remote will ultimately rest with the judge; usually the lawyers will agree upon their preferred course, and seek to influence the judge accordingly. The duty of disclosure is particularly strict, and rightly so. The pressure of time is particularly important in criminal cases. The defendant is in custody, awaiting trial, and the trial date, once fixed, cannot easily be changed. Time limits must be observed. Unfortunately there is a substantial backlog. The expert must ensure his availability for the trial. Criminal Procedure Rules part 19 expert evidence and practice direction.
The defendant with a poor case may hope and contrive that there will be long delays. In criminal cases the prosecution witnesses’ memory of the details may fade, and they may withdraw because of the delay so that a plea of guilty may be accepted or the case dropped; and in civil cases the other party may therefore become more willing to settle than to fight.
The remote hearing requires a good deal of organisation and technology, and smaller country courts may be simply unable to provide other than only a limited remote service, or even none.
Everything in order
Where the remote hearing is likely the instructing solicitor must make doubly sure that all the “paper work” is in good order, the expert report clear, simple and brief (and that does not mean amended in response to pressure from the lawyers), the likely contested issues effectively brought out, because the opportunity of oral amendment will be less than in a real situation.
The recent Practice Direction 54C in respect of the venue for judicial review indicates that normally the claim should be heard at a venue most closely connected with the claim, and the availability and suitability of alternative means of attending a hearing (for example by video-link) rule 2.5(c).
Practical problems in remote
The lawyers, especially the more traditional lawyers, point to a number of potential problems in remote hearings, problems which call for attention.
The remote hearing by definition is somewhat artificial, though we are getting more accustomed to it.
All the participants need a minimum level of competence and confidence on the computer screen. A certain lack of dignity may creep in, so dress and behaviour should reflect the ordinary real hearing as near as possible.
The computer view, for everybody, can become somewhat distorted. The witness may become destabilised, constantly looking directly at the screen.
Contact between advocate and expert, e.g. the whisper in court when some awkward or unexpected point comes up, becomes impossible.
Unless he has side screens and real fluency the expert may have difficulty with the bundles of evidence when in the process of giving his evidence, especially when challenged on particular points.
The expert witness may begin to suffer Zoom fatigue, lose his concentration, miss the nuances of the argument, fail to read and absorb all the computer material, miss the stimulus of human presence.
Advocates complain that they can lose control of the witness, have difficulty in managing the witness (in the proper manner of course), maintaining that close relationship.
Accusations have been made that the witness has the opportunity to cheat, by off-screen reference to material, by off-screen coaching, but such accusations must have no basis with an accredited reputable expert witness.
The expert in the remote world
There seems to be general agreement that so far as the expert is concerned so long as he follows the rules and the practice directions, keeps within his field of expertise, avoids any conflict of interest, produces clear, simple and brief written reports (with a nice executive summary), and exhibits skill, competence and confidence in both real and remote presentation, then he will have creditably played his honourable part in the administration of justice. When he is involved remotely the expert should understand the limitations of the process, and, subject to instruction, seek to overcome those limitations.
© Alec Samuels