Covid-19 has triggered an impromptu “virtual witness box” experiment which, if successful, could be a catalyst for change. Nikki Pender and Mark Solon provide some guidance for witnesses required to give evidence remotely.
As courts resume hearings post-lockdown, continued social distancing constraints will likely hinder many witnesses from attending court in person.
Remote participation by witnesses is not unprecedented (even before C-19 turned the world on its head, the courts allowed some witnesses to give evidence via video link); digital technology is advancing all the time; and there is potential for significant cost and time savings when witnesses are no longer forced to travel. If the current experiment proves successful, remote participation may become a normal way of giving evidence.
Everyone is on a steep learning curve when it comes to using remote communications. Many witnesses will now be used to video conference calls, but giving evidence is a different situation. Their whole demeanour and professionalism will be scrutinised and assessed: the way they speak, how they refer to the evidence, the way they look and even what they wear and their surroundings. Litigation lawyers should do all they can to support their witnesses in terms of presentation and the use of technology.
Here are some cut-out and keep tips for lawyers to pass onto witnesses required to give evidence remotely. Please always check for the most up-to-date court rules and protocols, which are currently evolving in real time. The method or platform to be used in the court hearings will likely be decided by the court at a case management conference although the current default for New Zealand courts is Skype for Business, supported by Microsoft Sharepoint. The tips below should apply to all current online platforms.
The reality is that the hearing is actually much like a classic in-person hearing but just done remotely. All the usual rules apply. These tips are designed to ensure that your evidence comes across clearly so that the court can then assess what weight to give to it.
Role as witness
- Your duties to the court remain the same whether you are physically present in court or not: you must tell the truth, the whole truth and nothing but the truth; and, if you are an expert, you should give evidence to assist the court on matters within your expertise.
- The key to giving good evidence is preparation.
- Practise being online on some neutral subject with a colleague or friend, the lawyer who is calling you, 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.
The bundle of evidence
- Clarify with your lawyer calling you that the bundle is being provided digitally as the courts require.
- Look through your evidence 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?
- 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 an area that has all you need to work effectively.
- Have a Keep Out sign if you use 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.
- 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.
- 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.
- 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.
- 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.
- Don’t look constantly at the lens as it appears unnatural.
- Remember you are now in court so all the normal rules apply.
- 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.
- At the end of your evidence, make sure you log off to avoid any embarrassing comments going out live!
After the hearing
- If the evidence is recorded, expert and professional witnesses should take the opportunity to review the event, make a note of what worked and didn’t work, and change as appropriate for the next time.
Mark Solon is a solicitor and founder of Bond Solon, a provider of witness familiarisation and expert witness training programmes in the UK. Nikki Pender is a New Zealand barrister and founder of Legal Empowerment.