2 Mins
This article was first published in The Times on Monday 25th July in the Thunderer Column.
Remote court proceedings have kept legal processes moving throughout the pandemic, for which we should all be grateful. Just like hybrid working has become a thing, I believe there is an argument that virtual hearings should be here to stay as well, but only in certain circumstances.
Where there are definite benefits in terms of cost savings and convenience, there is no doubt that video conferencing constraints are having an impact on some of the more complex communication techniques we humans have developed over thousands of years. The nuances of the subtle elements of non-verbal communication are sometimes lost over video link.
As a forensic accountant, I am regularly called as an expert witness and I can say from first-hand experience that there are real difficulties in giving evidence online, which although they may not seem significant, they could have an impact on the outcome of proceedings.
The role of the expert witness is to educate the court and that means educating the judge so all answers should be addressed to him or her. In a real courtroom, the witness box is placed on one side of the room not far from the judge. If the judge is to the left of the stand, then all the other players in the Court, the advocates and solicitors, are to the right of the witness.
This allows the expert to physically turn away from the advocate on hearing a question and address the answer to the judge. Turning away effectively reduces the opportunity for interruption by the advocate and allows the expert an element of control by having extra time to order answers succinctly. Once the point has been made, the expert can then turn back to the advocate for the next question.
In a virtual courtroom setting, there are no communication triangles. All the players, including the judge, are viewed on one screen ahead of the expert. There is no opportunity to turn away from the advocate asking the questions and as a result, it is much easier to be distracted and interrupted.
Another unintended consequence of giving evidence online is that the witness can’t see the judge taking notes. From the stand in a real courtroom, it is very easy to see when a judge is writing or typing and to pace answers so they can take down all the detail without having to put up with long pauses.
These may sound like a small thing, but along with other non-verbal communication ‘misses’ it adds to making educating the court and the judge much more difficult which could have unintended consequences.
