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November 17th 2020

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Lawyers and witnesses must become accustomed to demands of remote court hearings and evidence giving

Amanda Stevens

Amanda Stevens

Managing Director, London and South

Lawyers and witnesses must become accustomed to demands of remote court hearings and evidence giving

Like many aspects of life, the process of appearing before courts of law has been much changed by the Covid-19 pandemic and it will be fascinating to see which adaptations last well into the future.

Like many aspects of life, the process of appearing before courts of law has been much changed by the Covid-19 pandemic and it will be fascinating to see which adaptations last well into the future.

Across the legal profession we have all had to adapt to hearings being held in very different ways to keep the wheels of justice turning in recent months, and that means we have had to help and support those called to take part, such as expert witnesses and the parties themselves

There are now many cases held entirely remotely, whilst others have become a hybrid of people appearing in court in person, and those dialling in from their homes and offices.

Recently, I was privileged to chair the Expert Witness Institute’s Annual Conference – itself held online this year – at which one of the panel sessions was entitled ‘Covid-19: How the Pandemic shaped the role of technology in the courts’.

It was an absolute delight to hear from contributors Amanda Pinto QC (Chair of the Bar Council 2020) and Sarah Crowther QC (Vice-Chair Personal Injury Bar Association), as they shared their experiences of how the courts have adapted so far, how they personally have found taking part in remote hearings, and their tips for being best prepared going forward.

With the country finding itself once again in lockdown as we head towards the end of the year, I thought it a good time to share some of the key points raised in that discussion, and some of the best pieces of advice which were shared:

Make sure you have the right equipment

In a world where we increasingly rely on technology it is key to ensure your equipment helps you perform to your best in a remote court appearance. Would you benefit from having two screens, for example?

Sarah explained how she benefits from having a screen for her presentation and any videos, but also a separate screen for the bundle and the papers. She also explained how she invested in a microphone having found inbuilt computer microphones pick up a lot of background noise and made it hard to hear what was being said.

The advice really is to be extra prepared.

Remember, there isn’t an actual dedicated platform that the courts use to access remote evidence, so it could be that you are required to use Skype, a cloud video platform, Microsoft Teams or others. Familiarise yourself in advance and make use of any facility a court provides to use a test link or test hearing, as this can help calm the nerves around technology and allow you to focus on the case and evidence.

Find a suitable space to take part from

We’ve all become accustomed to seeing television interviews with people seated in a small room in front of a collection of books and awards, but where is the best for contributing to a court hearing?

Amanda stressed that it is best to find somewhere that helps assist your goal of getting your points across easily and forcefully, as she struggled looking at herself on her computer screen when she initially set up in her daughter’s bedroom in the first lockdown.

So, forget the fun backgrounds and go for somewhere quiet and without distraction – somewhere which will help you focus on the job in hand, and ensure others focus entirely on what you are saying.

Set up secure, private messaging groups for your team

One of the big disadvantages of not being in court is you immediately lose the ability to convey messages to other members of your team as a case progresses.

Sarah advised this is something that you do need to replace to replicate crucial communication which would take place at a court hearing held in person.

For example, this could be for an expert to speak to a QC, to give them the wherewithal to cross-examine another expert properly.

Of course, this comes with a warning to ensure a completely secure messaging platform is used so the confidentially or privilege of those discussions is preserved.

Don’t forget that even when at home, you are still effectively in court!

Both Amanda and Sarah warned of the dangers of forgetting you are effectively in a court of law even when seated at home.

Amanda quite rightly highlighted the potential for finding yourself in contempt should you fail to consider a number of factors, such as who is in the room with you and what you should and shouldn’t be doing during the hearing and when giving evidence.

For example, what access do you have to sources of information such as the Internet and should you be using it?

If you are sharing links or information about what is going on in proceedings, you must also ensure you have the relevant permissions to do so.

Witnesses also can’t just assume they can sit at home and watch on a link when the factual witnesses are in court.

Specific permission would be required from a trial judge in advance to do that, like when at court in person, so do the checks first.

Remember that remote evidence can be hard to understand and follow

Anyone who has taken part in a remote hearing will know it can be much harder to get the message across given the issues with time delays and people on occasions interrupting one another.

Therefore, the best and most simple advice is to speak more slowly than you would do in person. Also, make sure everybody who needs to hear evidence can do so.

It is important that expert witnesses on your team are able to hear the accounts of the relevant factual witnesses.

Both Sarah and Amanda highlighted the potential for inequality of being in, or not being in, the courtroom in hybrid hearings which have a mix of people in court and those dialling in remotely.

Those not in the room can often find it harder to follow or pick up everything, and as they are limited to the view the camera provides, they lose the visual clues and visual communication that goes on in a court room all the time.

One suggestion was, with permission in advance, to secure a live transcription service, as this limits the risk of missing any key evidence from not being in the court room or due to technology.

Tackle the limitations of remote assessments and evidence

Sarah pointed out that a lack of ability to carry out face to face consultations and examinations has impacted more on some than others in the court process.

Using the example of an orthopaedic surgeon, who would form most of their evidence based on a physical examination, she said experts must firstly consider whether it is at all feasible to prepare a meaningful opinion for the court without being able to interview or examine the person directly.

She said one option was, with the consent of the individual affected, to carry out consultations via video and record it so that you have a record of exactly what happened.

Of course, to do this, an expert must ensure the person being assessed is in a quiet place, comfortable, able to use the technology and that they feel suitably relaxed so as to give the best impression of themselves.

Other issues such as whether people should be accompanied for recorded video assessments need to be considered in advance and discussed with legal teams involved.

Sarah added that it is important for experts to make sure they describe in their report any limitations they faced as a result of assessing people remotely – as well as potential benefits, such as feeling more relaxed in their own homes.

It is clear that changes introduced as a result of Covid-19, and the way our courts and legal system operates, will continue to evolve.

All sessions from the Expert Witness Institute’s Annual Conference can be found on its website.

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