The Presence of the Expert Witness in a Virtual Courtroom

As lockdown eases and we can start to see the light at the end of the tunnel we hear rumblings of changes as to how and where we work.  Do we work exclusively from home or solely from the office? Can we find a flexible middle ground somewhere in between?  If we’re told we can work from anywhere – does that mean, we can work from a beach in the Bahama’s instead? 

Being present in the workplace leads me to consider the (temporary?) change in the Court system of virtual appearances and the lack of physical presence that myself and my colleagues have had in one of our workplaces – the courtroom.  Myself and my colleagues have had countless virtual meetings with each other and with solicitors and clients, and indeed also made virtual appearances at Court.  And like everyone else we have had no option but to adjust to this. 

Having read many other opinions on the use of technology in Court, I can see both sides of the coin with its use, but I would like to give my take on it.

In favour of it is that the expert witness can appear from (almost) anywhere in the world – I’m sure we all have that spot in one room where the Wi-Fi signal just doesn’t quite reach!  However, appearances from experts in other countries or even from the other end of the country are no longer out of the question.

Virtual appearances can reduce travel times and costs.  As Scottish expert witnesses we have cases from all over Scotland – why pay for an expert witness to travel all the way from Edinburgh to, for example, Lerwick incurring travel and accommodation costs when the same evidence could be given remotely? 

This also allows parties located in other countries to be able to be present virtually – a colleague recently took a case where one party resided in Southeast Asia whilst the other resided on the West coast of the United States.  Previously both of these parties would have required to travel to Scotland in order to be present at Court.  This could also offer the opportunity in future for the public to witness Court proceedings without requiring to be physically present in the gallery – this however may be a step too far and is certainly a topic for another time. 

This could also mean an opening up of availability of expertise from expert witnesses based outside Scotland thus widening the pool of expert witnesses in certain niche fields.  Conversely, there may be opportunity for Scottish based expert witnesses in other jurisdictions. 

The use of electronic papers has simplified the process and burden for experts of having walk / run over or mail a physical copy of a report to solicitors or agents insufficient time for submission in Court.  This small change can be quite significant in allowing experts an additional day or two when meeting deadlines where deadlines are tight. 

On the other hand, though there are some disadvantages to virtual appearances. 

Collectively we’ve suffered technical issues with glitches occurring and screens freezing, connections dropping, badly timed background noise and interruptions – with the culprits usually being children, pets and the postie – although thankfully none of any of these occurred whilst appearing virtually at Court!

We have also from time to time, found it more difficult to gauge the atmosphere of a room and if what we are saying has come across as intended.  As one colleague put it – they like to see the whites of someone’s eyes in order to see if they have properly understood what has been said.  As the majority of communication is body language it can be easier to gauge this in person than on a screen.  Having read an advocate’s perspective on this they have found it more challenging to take evidence virtually than in person. 

I also assisted with providing training to this year’s Devils in which we encountered one notable issue.  Due to all participants in the group using video conferencing software on laptops or similar small devices we were only able to see their faces.  During the giving of evidence, the expert could only see the ‘judge’s’ face and was not able to see his or her handwrite their notes.  This lead to a difficulty in pacing the answer to suit the ‘judge’. 

I know from a discussion with colleagues that this is also an issue in Court.  We give our evidence to the judge who is invariably taking notes, and we pace ourselves to the speed of their writing or typing to ensure that they don’t miss anything that is said.  We rely on being able to see the judge’s hands or body actions to determine the pace.  In a virtual courtroom neither the expert witness nor the Advocate were in the courtroom and able to fully see the judge, and their hands, leaving the expert to rely on when the judge appeared to be looking at the camera as they would dip their head when typing notes and would look back up at the camera once finished. 

Looking forward, it’s unclear if the changes introduced will remain but I would hope that certain elements may continue to be used.  Virtual appearances despite their drawbacks may make sense where distance, cost or availability is an issue. 

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Calum Williamson is a member of Henderson Loggie’s Forensic Accounting team providing specialist accountancy support in relation to actual or anticipated litigation. Henderson Loggie’s Forensics team have experience of a wide variety of civil and criminal cases including quantification of losses, valuations for matrimonial purposes, and financial tracing.  If we can help you or your client, please get in touch today.