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Video blunts cross-examination, study finds
Pic: RollingNews.ie

24 Aug 2021 / courts Print

Video blunts cross-examination, study finds

A study has found that aggressive cross-examination is not as effective over video link, according to a report in the Law Society Gazette of England and Wales.

The Gazette quotes research by international consultancy Berkley Research Group (BRG), which says that virtual court hearings have been “largely positive”, and have often exceeded the expectations of those involved.

Expert witnesses have reported, however, that traditional cross-examination techniques are “significantly less effective” in a remote setting, compared with a traditional courtroom.

“Ultimately, you’re looking at a picture on a screen, so a lawyer could be as aggressive as they wanted during cross examination, and it’s easier for me to stick with my answer,” says Henry Miller, an expert witness and managing director at BRG.

Faces a factor

Counsel and judges are also affected by the lay-out of faces on screen, the global study finds.

It says that hearings conducted with multiple people sharing the same camera, or with an expert witness sitting back from the lens, can have a negative impact on proceedings.

“This hinders the ability of the opposing counsel and decision-makers to judge the reaction of expert witnesses to questioning, and form a sense of the room,” the study says.

The Gazette quotes Allen & Overy (A&O) partner Anna Masser as warning against too many faces on screen at one time.

“If you’re not certain whom you have to convince, how do you engage properly?” she says. A lack of in-person preparation before entering proceedings is also cited in the study as a major drawback of remote hearings.

Hybrid hearings unpopular

On the whole, however, virtual hearings were well received by the lawyers and expert witnesses interviewed in the study, and the outcomes of proceedings were widely thought to have been the same as if they had taken place in person under normal circumstances.

In contrast, hybrid hearings – in which some participants are physically present and others dial in – were unpopular.

The report was based on the views of six of BRG’s international expert witnesses, together with an arbitrator based in Hong Kong, a Russian lawyer specialising in the psychology of dispute resolution, and Anna Masser (head of A&O’s international arbitration practice in Germany).

In May, professional bodies across the UK claimed that remote hearings delivered a “markedly inferior experience” and degraded human interaction.

In a joint statement, the Bar Councils of England and Wales, Northern Ireland, and Ireland, together with Scotland’s Faculty of Advocates, said that virtual hearings had “multiple and multi-faceted disadvantages” compared with in-person proceedings, including less satisfactory interaction with judges.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland