Virtual hearings “could improve quality of expert evidence”

McFarlane: Avoid hubris

The ability for experts to give evidence remotely in the new era of virtual hearings will be “very welcome” in some cases, a senior judge said today.

Sir Andrew McFarlane, president of the Family Division, said that – assuming the technology works – “for the right type of case, a fully or partial virtual hearing is likely to be an efficient, effective and economic way of conducting court business”.

Speaking at today’s Bond Solon Expert Witness Conference in London, Sir Andrew said that aside from the obvious advantages for experts of less travel and waiting around, more “subtle” benefits would emerge.

He explained: “Some years ago, it was necessary for a hearing over which I was presiding to receive the key evidence from a leading paediatrician over a video link. The evidence was complicated and the process of giving it took most of a day.

“The expert was in an office which had a large conference table, over which he had positioned the key medical records and other material. As he gave his evidence, rather than standing confined in a witness box as would be the case had he attended ‘live’ in court, he was able to move round the room and access relevant material as and when he needed to.

“In addition, being technically adept, he was able to include his computer in the video loop and, where necessary, refer to photographs, diagrams and extracts from research papers from his PC in much the same way that a lecturer might when giving a lecture.

“My strong feeling at that end of that day in court was that the process of giving evidence down the line had been far more effective in terms of allowing the expert to explain and deliver this complicated evidence than would have been the case had he attended to testify in the ordinary way.”

Offering some general advice to the audience, Sir Andrew urged them to “avoid being blatantly partisan and or too dogmatic”.

He continued: “An expert who, whilst ultimately disagreeing with an alternative opinion, can properly accept those parts of the alternative analysis which are acceptable, before then explaining why he or she disagrees with it… is, in my view, a much more impressive and valuable witness when compared to one who simply tows the party line or holds unflinchingly to one particular theory refusing to countenance any part of the alternative case.”

Sir Andrew also spoke of witnessing “a few examples of seasoned expert witnesses who have become so used to giving evidence and to having their opinions accepted in the higher courts that they have become extravagant to a degree that has moved them well away from the sound scientific basis that had hitherto underpinned their valuable opinions”.

He said the “most striking example” of this was Professor Sir Roy Meadow, whose evidence on multiple cot deaths – and particularly his infamous claim in the trial of solicitor Sally Clark that there was a one in 73 million chance of two cot deaths occurring in a family like hers – led to murder convictions that were later overturned.

“There are others,” Sir Andrew said. “Hubris is, in my view, no friend of the expert witness and is to be avoided.”

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