Staying on the ball in the box
29 April 1997
16 August 2013
9 July 2014
1 April 2014
12 November 2013
28 July 2014
Expert witnesses have been much in the news recently. Their role has been analysed, and emphasis placed on the education and training they need to enable them to fulfil their role in litigation. Experts are regularly exhorted to independence of mind, and receive many tips on how to present their evidence.
But what is it actually like being in the witness box? After all, most of those offering advice are lawyers: inevitably they are approaching this question as observers rather than participants. And, as every sportsman knows, an important aspect of training is to get advice from those with first-hand experience of the event.
The witness box is a lonely place. Once you have taken the oath you cannot speak to anyone (inside or outside the court) about any aspect of the case, without specific permission. No-one will help you remember the relevant page in the file, or how it was interpreted, so it is important to be properly prepared and to know your way around the evidence. This will prevent you from being confused when counsel leads you through several files and seeks to make points from documents he is hoping you have not seen.
The loneliness extends to adjournments as well, so be ready to lunch by yourself. On the plus side, you will avoid those lengthy after-court conferences (every cloud has a silver lining).
Always remember that you are the expert. Counsel is more used to asking questions than you are at answering them, but you are, nevertheless, there to be heard. So speak up, and do not be swayed from saying what you want to say, or from making sure the judge understands what you mean, not what counsel wants you to mean.
I have found that counsel often seeks to paraphrase a witness's words (whether oral or written), and subtly to change their meaning in doing so. Even worse, reading your words with a different emphasis from that with which you wrote them, or taking them out of context, can alter their intended meaning - you have the right to correct counsel when he tries to do this.
Being under oath is a weighty obligation, but also confers rights on you. In particular, you will find that judges are happy to allow a witness time to think about a complex question, as it demonstrates a willingness to listen rather than simply a desire to opine. But watch out for interesting questions that stray outside your area of expertise: I have seen counsel tempt experts out of their fields, only to leave them stranded with untenable answers and reduced credibility.
I have been advised that the most dangerous question is the one the witness is not asked - because it allows counsel to interpret the earlier answers as he wishes. That is not something you can control, so it is preferable not to try - it is better to answer fully the questions you are asked than to try and guess what counsel is leading up to.
In my experience the most important questions are those asked by the judge. They offer an insight into his way of thinking and give you an opportunity to build up a rapport which will help you get your message across.
There are times in the witness box when it is easy to become irritated, especially when counsel forgets your name (understandable when there are many witnesses) and asks the same question in three different ways. But you must not lose your cool: keep calm and answer the questions as they come. You might not realise you have not explained yourself clearly, and that counsel is not trying to trick you.
Above all else, the key to a successful appearance in the witness box is to remain independent and objective at all times. Oral evidence can be relied upon to reveal bias, the existence of which will undermine your credibility and evidence, with potentially disastrous consequences to your client.
The degree of concentration required in giving evidence is such that I have experienced the intellectual equivalent of winning the boat race - I have felt exhausted, but elated. However, winner or loser in the battle of wits, once you have your first experience under your belt, you can now truly call yourself an expert witness.