Expert witness | The courtroom of the future

As any expert witness who has had their day in court will know, a trial is characterised by large bundles of paperwork, a courtroom full of people who have often travelled huge distances to be there, and, on the whole, a resounding lack of technology.

While tangible, paper-led evidence may be safe and, to a great extent, foolproof, it allows none of the speed or flexibility offered by the technological advances outside of the courtroom.

There have been a number of significant developments, particularly within the criminal arena, to the way cases are prosecuted. At the top of this list, the Criminal Prosecution Service (CPS) now use handheld tablets in court, which is driving the court at large to look at how they can reduce the amount of paper relied on in

all trials.

Most trials require substantial amounts of documentation, which is painstakingly divided and labelled in lever arch court bundles. Problems often arise when the bundles are not copied properly and it causes huge disruption and consternation ?in court when it emerges that the bundles are not identical. It also causes delay, which for witnesses attending court to give evidence can, in the worst cases, mean their evidence will not be heard that day.

Even correctly laid out court bundles are notoriously difficult for witnesses to navigate round. They can run into thousands of pages and numerous folders, and for a witness trying to maintain their focus and thought process, jumping between pages and court bundles can be highly disconcerting. It is far easier to access the right document and the right line in that document digitally, without the ensuing flurry of paper around the court room.

While solicitors are still largely resistant to the idea of a paperless court, expert witnesses, along with the majority of the population, are familiar and comfortable with the use of iPads, Kindles and other handheld devices. In an age when law firms and corporates alike are having to reduce costs and, increasingly, to consider their carbon footprint, less paper is cheaper and better for the environment. Its very presence marks the court as old fashioned.?Remote evidence?Elsewhere, in a further development currently being introduced to the way we give evidence in court, video link equipment is being rolled out to all sites so that at least one court on each site will be able to conduct a video trial. Video evidence has long been established as an essential means for child witnesses and vulnerable witnesses to give evidence without having to confront the perpetrator. For experts and others who have to travel long distances this opens up the possibility that they could appear over a video link. Expert witnesses who live abroad could, in theory, be cross-examined without incurring the loss of time and cost of travel to court.

Medical expert witnesses often complain that they are required to attend court only to find that the case has settled or that they are no longer required and the ability to give evidence remotely would undoubtedly minimise the disruption to their core medical practice area.

Currently, the reality is that those who are able to attend court and for whom there is no compelling reason to appear on video link will still be expected to appear ?in person for the foreseeable future.

While the IT director of HM Courts ?and Tribunals Service Paul Shipley is pursuing the development of technology ?in the courtroom, including allowing people to give evidence virtually via a webcam, currently there is nervousness about not being able to control the environment in which a witness gives their evidence. He comments: “If you can’t see someone giving evidence in front of you in court, the fear is how do you know there is not someone behind them coercing them into giving?their evidence?”

It is also more difficult for a judge to assess the quality of a witness when they are not exposed in a brightly lit courtroom. There is no better way to test a witness than seeing them in the witness box and being able to read their body language and tone of voice.

Furthermore, it is harder for barristers to cross-examine witnesses in a robust way when the person is not physically present in the court room. These are all obstacles that will be overcome in time and advocates

will need to be trained on how to cross examine virtually.

Perhaps equally difficult is how the court of the future will enable expert witnesses to give concurrent evidence (colloquially known as hot tubbing) which is becoming more prevalent following a successful pilot in the Manchester TCC and Mercantile Court. Hot tubbing involves expert witnesses coming before the judge at the same time and, after cross examination by a barrister, the witnesses are encouraged to put questions directly to one another.

However, much as debates are held on the evening news between parties who are only in attendance via a video link, these problems are not insurmountable.
There may not currently be any appetite for a virtual court with virtual case files, but that is not to say it will never arise. In fact, the time may come when it will have to.?Trial and error?There are many changes on the horizon for the courts and witnesses giving evidence at trial, but currently many of them are in developmental stages.
For experts looking for a quick fix, the overriding message from Shipley is that the courts are taking baby steps in order to test the appetite for and the success of technological developments. Currently being trialled in key courts is the use of WiFi, so that anyone who appears in court can log on to the system and access their own data across the court’s network, reducing the need for paper.
For the CPS it will also mean less delay. If a hearing relies on one set of papers but the case changes, that hearing will have to be adjourned to another day, wasting the time of all those in attendance and incurring significant cost at a time when the CPS budget is being cut. However, Shipley says: “If the documents needed are available on a tablet via Wi-Fi the CPS can search and proceed on that basis.”
A further pilot is seeing CCTV and other evidence from the police and the CPS stored in an easy to access document repository. The ambition is that this will be projected directly onto a screen in court, rather than relying on DVDs that also need to be reproduced, filed and stored.

These developments can be expected to increase the speed with which trials are disposed of. For experts this will mean an increased need to manage their commitments and be available when they have said they will be.

The court also has in its line of sight more automation in the way it schedules hearings and publishes its results; perhaps one day publishing results on Twitter.

While the possibilities for development may be limitless, the budget for change is not and the question must be asked to what extent the tax payer can be expected to fund these changes.

The hysteria surrounding the millennium bug was famously unfounded, but the courts understandably left nothing to chance and are still saddled with expensive service agreements, governance and procurement law arising from that time. This means there has been little budget for new technology up until now.

Furthermore, in order to introduce any changes, Shipley must also demonstrate that ‘cashable savings’ will be made to the court budget – in other words, that the change will reduce the number of people needed to attend or increase efficiency

and productiveness.

He must also be able to demonstrate that any developments will be fully utilised, and currently one of the issues is that changes already introduced are not being used to their full capacity.

Interestingly, while cloud technology still appears a futuristic leap to some, its potential for cost savings means it is being looked at with interest by the courts.“For someone with little money, cloud technology is huge; we can source it when we need it and you don’t need lots of kit,” comments Shipley.

For experts, the ability to access a document repository, enjoy greater flexibility and even give evidence remotely would most likely increase their own efficiency at a time when the pressure to cut experts costs is enormous.

Lord Justice Jackson’s civil justice reforms report of 2010 recommended a number of measures to reduce the cost of civil litigation and expert witnesses are very much in the firing line.
Finding a way to improve efficiency and reduce the time expert witnesses devote to a trial would be very much in keeping with current thinking.

However, the legal profession is notoriously conservative and one of the last bastions to rely on paper. Even small changes can lead to fears that paper will be unceremoniously dispensed with and all parties expected to use a tablet overnight.

The message from Shipley is that this is not going to happen. Any new development is preceded by a pilot, enabling all parties to give their feedback and only if the pilot is successful are the changes being introduced. “These improvements will be phased in and no court user will be disadvantaged.”

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