Toning down the theatrics: Barristers “less aggressive” in remote hearings

Remote hearings: Courtroom dramatics may not work online

A significant number of expert witnesses who have been appeared in court remotely over the past 18 months say barristers have been “less aggressive” in their cross-examination.

The annual survey by Bond Solon also found that half of the 691 experts polled were more likely to accept instructions for a remote hearing.

Only 36% had actually given oral evidence since the pandemic struck the court system, and of those who had been cross-examined, 42% agreed that remote cross-examination was less aggressive.

“It is more difficult for the cross-examiner to control the flow of the encounter,” the survey said.

“Cross-examining lawyers 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.

“Perhaps we shall see a more forensic approach as lawyers find more screen-appropriate methods of disconcerting a witness to discredit their evidence. It may be lawyers will need to be trained in new online advocacy skills and experts will need to reciprocate.”

Around half of those who had testified remotely thought their evidence was given the same weight as in a live hearing, while 38% were unsure.

“A judge or jury needs to be very attentive as a witness gives evidence remotely. The image of the witness is in two dimensions and much smaller than when seeing the witness in person in the courtroom.

“Interruptions by an impatient cross-examining lawyer appear ruder on a TV monitor and lawyers may have learned to be silent as a witness speaks and that could give the impression to the witness that their evidence is given greater weight.”

More generally, nearly a third of experts said they carried out more than 90% of their work remotely since the pandemic.

“This is a seismic shift from before Covid-19. It has implications for how investigations and examinations are conducted, how instructions are taken and how evidence is given.

“When travel and accommodation costs are all but eliminated, there will be cost savings that will be reflected in court budgeting.”

The experts were evenly split as to whether remote discussions with other experts and with counsel were better or worse than face-to-face, but some 27% said carrying out assessments remotely was worse, particularly for medical matters.

Workload actually rose for 40% of the experts in the previous year, particularly for those operating in family law. “Even in this extraordinary time, it seems litigation still flourishes and needs the services of expert witnesses,” Bond Solon observed.

Experts’ rates have in general increased over the past two years – while £100-150 remained the most common rate, the proportion charging more than £200 an hour rose by three points to 40%. It was 47% for civil experts, 20% of family experts and only 4% of criminal law experts.

Experts were split down the middle as to whether they were more likely to accept instructions for a remote hearing, while a third said they preferred working remotely.

Meanwhile, the judicial committee of the Academy of Experts has issued guidance on court-ordered joint expert statements in civil litigation.

The committee was headed by Lord Saville – whose 15 years as the academy’s president ended this week – and included Lord Reed, Sir Rupert Jackson, Lord Justice Dingemans, Mrs Justice O’Farrell and Mr Justice Williams, as well as representatives from Commonwealth jurisdictions.

Former Supreme Court president Lord Neuberger succeeded Lord Saville as president of the academy.

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