“And now, Miss Cochrane, can you tell the court just exactly what an asset is?”
“And what were the UK interest rates doing in 1988 around about the time the defendant was increasing his borrowing to £100 million?”
“Can you tell the jury why the fat b****** who is the defendant should want to rip off his poor defenceless creditors?”
These are just a few of the questions which an expert witness might be asked to answer when invited into the courtroom to explain jargon.
There are two types of expert witness. The court's expert witness is expected to be impartial, while the expert witness employed by the defence usually has his or her price. Each expert witness may be asked to prepare a witness statement prior to appearing in the witness box and then be asked to explain its contents. The statement by the court's witness is likely to be read by the defence's expert who will then produce a statement refuting it.
These ground rules for a witness statement may be summed up in the acronym KISS – keep it simple, stupid. But often the defence expert witness will comment that the court's expert witness statement is, in fact, far too simple.
In a recent case for example, the defence expert witness, who was an accountant, stated that the statement of the court's expert simplified company funding. He went on to say that companies have complicated funding methods and that at least a working knowledge of the Modigliani and Miller theory was necessary to understand the finances of the company concerned. Given that, the defence contended, and the fact that prosecuting counsel (who possessed an Oxbridge first and a Masters) was unable to grasp this theory, what chance did the 12 good men and women have?
Unfortunately, this ploy backfired. The judge was upset because he had harboured a grudge against accountants ever since he failed maths O level.
The court generally expects the expert witness to assist it and the jurors (who by halfway through the case have finished The Sun crossword and, the inevitable courtroom flirtations notwithstanding, are beginning to take some notice of the case). This is the time for knowing looks to be thrown about as the wheels of justice grind on – the expert witness should look like an expert.
Another tactic the expert witness might gainfully employ is that of befriending the judge. Not only does this make for a less harrowing grilling in the witness box, it might even help win the case. Such behaviour will probably annoy the defence counsel though, who is likely to engage in semantic warfare.
However, it is just at this time that the masterly expert will call in the judge's debt of friendship. The expert then receives the payback for all his obsequious m'Lud-ing as the judge, wig flying, comes riding to the expert's rescue and saves him or her from a severe haranguing by the defence.
Judges are particularly fond of a subservient witness who is smartly dressed and does not complain about the waste of his expensive professional time. Speaking slowly, clearly and looking directly at the judge and the jury are also endearing. Making fun of his wig is not.