This is a very interesting article highlighting a survey conducted by Bond Solon (a training organisation for expert witnesses). Having been cross-examined in both a remote international arbitration and an in-person High Court trial so far this year, the results and observations from the Bond Solon survey are interesting to compare to my own experience.
One of the key findings of the Bond Solon survey is that “more than 40 per cent of those who had been cross-examined in remote hearings during the coronavirus pandemic said that the approach of barristers was less forceful” and Bond Solon said that advocates “may need a more forensic approach and find more screen-appropriate methods of disconcerting a witness to discredit their evidence. They will need new online advocacy skills and experts will have to keep up”. In my experience, providing evidence remotely certainly removes some of the drama, but it is no less intense than being in a Courtroom or tribunal. Remote hearings also allow for more people to watch proceedings, although one is not so conscious of that whilst in the depths of cross -examination.
Bond Solon point out that the survey results indicate that experts are “adamant” improvements are needed in technology used for hearings. In my experience, technology has worked very effectively in hearings and has improved markedly over the last 18 months or so, as we all have become much more familiar with the various platforms. Assuming there are limited technology challenges, and the court or tribunal shows sufficient flexibility in the timetable to allow for witness and expert evidence in multiple time zones, there are efficiencies and benefits to be gained.
In my view, remote trials/ hearings will continue to be advantageous in certain circumstances, especially where individuals participating in the proceedings (such as the parties, lawyers, and expert witnesses) are located in different countries. There are often significant time and expenses associated with meeting in one location. The trend towards remote proceedings also has the ancillary benefit of reducing the carbon footprint, which is high on individuals’ and corporates’ agendas. It seems that for certain cases remote cross-examination is here to stay!
Barristers are less aggressive in cross-examination during remote hearings because the “theatre” of the courtroom has been removed, expert witnesses have revealed.