For the last 400 years, expert witnesses have been immune from suit for breach of duty. Traditionally that has been justified by reference to the public interest in expert witnesses giving truthful and fair evidence in court, without fear of being sued by a party whose case is lost. However, recently the Supreme Court – in a decision that has implications not only for expert but for professional witnesses who may owe a duty to a party in the case – removed that immunity. Lord Philips stated: ‘Whether professional persons are willing to give expert evidence depends on many factors. I’m not persuaded that the possibility of being sued if they are negligent is likely to be a significant factor in many cases in determining whether a person will be willing to act as an expert.’
So, the witness box can now be an even more forbidding and lonely place for the expert or professional witness that is not prepared for the experience. Proceedings before courts and tribunals can be likened to a theatrical play. All the participants are actors who, essentially, know the script and have read their lines: apart, that is, from the inexperienced and untrained witness who has no set lines and doesn’t quite know what to expect! But for the professional and expert witness in particular, positive impressions are important: a poor performance can undermine confidence and credibility in the evidence that the witness is called upon to give and now can lead to a disgruntled party seeking financial redress through the courts.
Many expert and professional witnesses have never given evidence in court. Often disputes are settled before the case is heard, and sometimes at the door of the courtroom. Those experts who do have experience have usually developed their skills in the courtroom itself, which can be a dangerously hit and miss business. However, there is no mystery to becoming an effective witness. It requires only three things: preparation, preparation and preparation! Positive impressions are created by being prepared and organised, by knowing the courtroom setting where the hearing is to take place, and by a complete familiarity with the factual and opinion evidence that is to be presented.
Without doubt, it is cross examination that potential witnesses are most anxious about. Within an adversarial system (such as we have in this country), cross examination is all about challenging and testing a witnesses’ testimony and about eliciting evidence which is favourable to the examiner’s case. Different advocates approach cross examination very differently. Some take a softly, softly and friendly approach (remember the Chinese proverb, ‘beware the smiling tiger’?); others can be very aggressive from the outset and can seem hostile and critical of the witness. Doubt may be cast on the witnesses’ experience, qualifications, methods and opinions, to the extent that many start to wonder whether it is they who are on trial. But it is important not to take things personally and it’s even more important not to be intimidated. Self-evidently, the witness who presents his or her evidence under cross examination calmly, accurately and with confidence, it is likely to have more influence on the outcome of the case than one becomes openly angry or who bursts into tears and rushes from the court! However, there are ways of dealing with cross examination of whatever type: learning and practicing them is all part of the preparation stage of the process.
The Sancus Solutions Courtroom Skills Course is an intensive, highly practical and experiential form of training. First we examine the stage that is the courtroom, the ‘actors’ to be found within it and the theory, practice and procedure of giving evidence, thereby demystifying the process.
But the maxim that there is no substitute for experience is as true in the courtroom as in other walks of life. To give evidence effectively requires practical experience. So, with that in mind, the course provides the opportunity for delegates to give evidence in chief and to be cross examined just as they would be before a court or tribunal. Forewarned is forearmed!
Have a look at https://www.sancussolutions.co.uk/courtroom-skills-training/ for more details
This article was penned by Michael Williams, Barrister, and presenter of Sancus Courtroom Skills Training