The COVID-19 pandemic introduced new norms for a variety of different industries. This was no different for the legal sector. During full or partial lockdowns, lawyers, arbitrators and expert witnesses have had to adapt to hearings and tribunals being held remotely.
This summer the global business consultancy firm, The Berkeley Research Group (BRG) published their report into the psychological impact of remote hearings after conducting interviews with lawyers and their own expert witnesses. Their findings highlight how cross-examination in a virtual environment can have an interesting psychological impact – both positive and negative – on those required to give evidence, and impact the hearing outcome generally. We summarise the BRG’s findings below.
The Psychological benefit of remote hearings on cross-examination
The environment
The research found that expert witnesses are more at ease in a relaxed setting of familiar surroundings. The benefit of this, as highlighted by Managing Director and expert witness at BRG Daniel Ryan, is “it’s easier to give evidence and, frankly, I think that’s probably of benefit to the process because you are likely to receive better answers from the expert…”. Essentially, the court benefits as the answers provided are considered more carefully and not rushed under the pressure of a traditional environment.
Questioning
The participants found that even with technical glitches disrupting the flow of proceedings, this did not affect their ability to question an expert witness and determine the validity of such witness’s point of view.
It was highlighted that improvements in technology meant that there is an ability to zoom in on those undergoing cross-examination. This helped to heighten any telling facial expressions. Chiann Bao, an arbitrator at Arbitration Chambers, commented “You can see exactly where they stand and get a sense as to the veracity of the evidence provided through non-verbal cues alone”.
Decision making
The participants in the study did not agree that a change in environment has a considerable impact on the decision making process and outcome of the hearings. Although inherently difficult to be conclusive, it was felt that that the outcome of virtual proceedings are likely to have been the same as if they had taken place in person. One of the reasons for this is, although there have been noticeable differences in undergoing cross-examination remotely as opposed to physically, expert witnesses are trained to deal with the pressures of a court room setting and have been able to adjust easily to the virtual environment.
The negative psychological impact of remote hearings on cross-examination
Cross-examination techniques
It was found that traditional techniques used by barristers and other lawyers in an attempt to place pressure on expert witnesses undergoing cross-examination, were significantly less effective than in a traditional courtroom setting. One contributor, Mustafa Hadi, Managing Director and expert witness at BRG, pointed out that “….if somebody’s trying to be aggressive with you, you can simply turn the volume down”.
Relaxed setting
Although virtual hearings may create a more relaxed environment for the expert witness to provide more considered answers, this is not to say that this benefits the expert or the quality of evidence provided. Away from the formality of the physical hearing room the research found that these types of settings lulled the witness into a false sense of security. This was to the benefit of the opposing counsel as the witness’s exchanges with his or her cross-examiner became more conversational in style.
Preparation
Virtual hearings means there is a lack of in-person preparation of the witnesses. The research states that this was one of the major drawbacks of remote hearings and has a negative impact on both expert witnesses and the wider legal team, as in-person preparation helps to build confidence and ensure everyone is on the same page. The lack of pre-tribunal team-building can lead to miscommunication between counsel and expert witnesses.
Questioning
Although technology has created the ability to focus on a witness’s facial expressions, the research found where multiple people shared the same camera, this hindered opposing counsel’s ability to judge the reaction of an expert witness when being questioned. As highlighted by Anna Masser, arbitration partner at Allen & Overy "with too many people on a screen, whom do you focus on?”. Psychologists have suggested that removing video entirely, therefore only allowing decisions to be made on verbal evidence alone, would lessen the potential impact of unconscious bias.
Decision making
It was found that technical issues may have an impact on the decision making. Any delay in a witness answering questions, due to connection issues, can be interpreted as the witness hesitating in answering questions. This, along with arbitrators or other decision makers staring at a screen for long periods of time (so-called “Zoom fatigue”), which is less engaging than being in a physical courtroom, and being less inclined to interject on procedural grounds, has meant that hearings are harder to control and decisions being reached more quickly.
Future of remote hearings
Overall the BRG research found that, although there are some negative psychological impacts to remote hearings, they have largely been working well and many praise their efficiency both in time and cost as travel expenses of expert witnesses and legal teams are minimised or eradicated completely.
Virtual hearings, in some shape or form (full or hybrid) are almost certainly here to stay, although there are differing opinions from one continent to another as to what will be the norm. One of the report’s conclusions is that a trend for hybrid hearings does not appear to be the preferred approach, with either fully remote or fully face-to-face hearings being the favoured option.
Catherine Penny