CAMERA SHY? TOP ONLINE TIPS FOR EXPERT WITNESSES

Related Sector: Expert Witness

The coronavirus (COVID-19) pandemic brought about a fast and widespread transition to remote hearings while participants were unable to attend court or tribunal buildings. The results have been mixed, depending on factors such as the complexity of the hearing, how much live evidence needs to be given and whether any vulnerable parties/witnesses are involved. 

In December 2021, the HM Courts and Tribunals Service published an evaluation of remote hearings, reflecting on some of the concerns raised. And this year (2022) it will be transitioning to a new video hearing service, which includes virtual consultation rooms and built-in guidance for court users. 

It is currently at the discretion of the judges whether a case is suitable to hold as a remote hearing, based on whether the court can be satisfied that justice can be served. Therefore, it is highly likely that many expert witnesses will still need to be prepared to give evidence by video link or phone. 

Guidance

Various pieces of guidance have been released since the outbreak of the pandemic.

• The Civil Justice in England and Wales Protocol regarding remote hearings for civil matters, was released on 20 March 2020 (https://bit.ly/2JqGPMU) and remains the most comprehensive guidance on this subject. 
• On 23 March 2020, Mr Justice MacDonald produced ‘The Remote Access Family Court Version 1’ (https://bit.ly/3dEP7i2).
• The Crown Prosecution Service (CPS) has provided some guidance for criminal trials (https://bit.ly/2QZ6Ffk).
• In December 2021 HM Courts and Tribunal Service published an Evaluation of remote hearings during the Covid 19 pandemic (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040183/Evaluation_of_remote_hearings_v23.pdf)
• Other smaller pieces of guidance have been published by different courts, such as the Remote Hearing guidance to help the Business and Property Courts (https://www.judiciary.uk/announcements/remote-hearings-guidance-to-help-the-business-and-property-courts/) and the Chancellor of the High Court’s Practice Note on witnesses giving evidence remotely (https://www.judiciary.uk/wp-content/uploads/2021/05/Practice-note-from-CHC.pdf).

As guidance is constantly being updated, we urge readers to check for more up to date versions, where applicable. 

Key points

• Although the hearing will be recorded by the court, no one may make other recordings without permission.
• Apart from the new procedures remote hearings are dealt with as classic CPR hearings.
• The principles of open justice remain paramount, and the judge will decide at the outset whether the hearing is open to the public or private. If it is public, various ways are suggested to allow this.
• The judge and listing office must make sure facilities are available and that the parties know the method of remote communication.
• A short remote case management conference (CMC) in advance of the fixed hearing can allow for directions to be made on the conduct of the actual hearing to avoid delays and problems on the day.
• The parties should prepare a pdf of documents and authorities properly indexed, paginated and circulated in advance. These should contain only essentials as large electronic files can be slow to transmit and unwieldy to use.

Many experts will have been on video conference calls but giving evidence is a different situation. Their whole demeanour and professionalism are being judged. The way they speak, how they refer to the evidence, the way they look and even what they wear, and their surroundings are being judged and assessed. Solicitors should do all they can to support the video virgin in terms of presentation and the use of technology. Everyone is on a steep learning curve when it comes to using remote communications.

The method or platform to be used in the court hearings will be decided by the court at a CMC. There are numerous methods available. Ones used already in hearings have included BT Conference Call, Skype for Business, Court video link, BTMeetMe, and Zoom—and there are certainly others available. The choice of method is for the judge to make. Once that choice has been made, that should be communicated to the parties by court order and the parties, via their lawyers, confirm the details to their witnesses.

The most important point to remember is that, whether you are physically present in court or not, your duty to the court remains the same as always: you are giving evidence in order to assist the court on matters within your expertise. The reality is that the hearing is actually much like a classic in person hearing but just done remotely. All the usual rules apply.

Preparation

• The key to giving good evidence is preparation.
• Practice being online on some neutral subject with your instructing solicitor, colleague or friend or during a training programme* before the hearing itself.
• Familiarise yourself with the process and the equipment. There is nothing worse than doing this for the first time at the actual hearing.
• Check the time of the appearance. Put this in your diary.
• Set everything up a good 30 minutes before the time.
• Find out the names of the counsel who will put questions to you.
• Prepare your own evidence as if you were going to the courtroom itself.
• Have all the evidence to hand whether physical or digital.
• Read through the appropriate formal guidance listed above and make sure you comply.

The bundle of evidence

• Clarify with your instructing solicitors that the bundle is being provided digitally as the courts require.
• Look through it before the hearing and make yourself familiar with it as you would in a physical trial.
• Check how documents will be shown to you for your comment: will they be shared by the questioner or will you be able to call them up yourself?

Your space

• Create a special working space from which you will give your evidence.
• Make the space look professional and without a distracting background. Think courtroom!
• It’s probably best to have a desk to sit behind and make sure everything is stable to avoid wobbly images.
• It doesn’t have to be a whole room but give yourself an area that has all you need to work effectively.
• Have a keep out sign if you have a particular room and agree some ground rules with the people you live with.
• Have all the things you need available: paper, pens, computer, phone, glass of water, charger, calculator etc.

Interruptions

• Ensure that there will be none for the duration of the time that you are giving evidence.
• You may want to have someone else nearby, to take any calls or answer the door.
• Put your mobile phone on silent.
• Go to the loo before your session starts.

Equipment

• There will be a camera and microphone built into your laptop or PC and these should be sufficient for the job. However, you may wish to invest in a separate webcam, headset and speakers to improve quality.
• Test the equipment; you may have already used them for conference calls, skype calls etc; if not try them out, by calling friends, family or colleagues, before the trial date. Can they hear you clearly? Can they see you clearly?
• Check your broadband speed. Current guidance requires a minimum bandwidth of 1.5MBPS.
• Again practise using the kit.

Set up

• Dress as if you were going to court.
• Have the camera at eye level, as you sit down at your desk.
• Don’t set the camera so that you are looking down at the camera or have the camera looking up at you.
• Have yourself in the middle of the camera shot, showing you from desk level to the top of your head.
• Don’t get so close to the camera that your image is distorted.
• Remember that as in a physical hearing, recording is prohibited without the permission of the judge. If you want to see the way you look while giving evidence, record a practice session. Also remember you cannot practise on the issues of the actual case in mock cross examination with someone else.

Background to video image

• Make sure that whatever is in the background is clear, uncluttered and not distracting.
• Clear walls are better than walls with pictures, photos, ornaments etc.
• Do not have a window in the background, as you will appear on screen as a silhouette.
• Have a light source in front of you, but behind and above the camera, so your face is clearly seen.

Eye contact

• Look at the lens of the camera – if you look at the image of the speaker on your screen, then you will appear to be looking down on the viewer’s screen image of you.
• Try not to focus too much on the lens as it will appear unnatural.

Giving evidence

• Speak clearly and at a steady pace so that everyone can follow what you are saying.
• Refer to your report where helpful and necessary. If you can call up and share that document, that will make it easier for you.
• Remember that you are now in court so all the normal rules apply.
• At the end of your evidence, make sure you log off to avoid any embarrassing comments going out live!

After the hearing

Review the event and make a note of what worked and didn’t work and change as appropriate for the next time.

Author: Mark Solon, solicitor and founder of Bond Solon
This article was first published on Tuesday 15th February 2022