Olivia Dobbie, one of Assurety’s trainers, is an experienced employment barrister at Cloisters and part-time employment judge. We talked to her about Assurety’s work with expert witnesses.
In my experience, many witnesses do not understand what their role is in the litigation and have little understanding of the dynamic of the court. I have been amazed at how even very seasoned expert witnesses have their own view as to what will resonate well, or “win” their side of the case. However these misunderstandings manifest in the witness’ performance, they very often hinder their side of the case and unwittingly damage their side’s prospects.
Witnesses tend to perform best when being asked questions about something within their expertise where there is no suggestion of fault or failure on their part, in which case the witness can be comfortable, relaxed and their demeanour can be very open and helpful. The problem that can arise is when the same witness is challenged and demonstrates a significant shift in their demeanour, becoming defensive and curt. We try to encourage consistency and a positive open demeanour throughout, even when facing challenging questioning or personal attacks.
I find that the more senior a witness (be it seniority of expertise or seniority in an organisation) there can be a reluctance to take on board any constructive feedback and an air that they know best. Such witnesses can be the key to a case in terms of their factual knowledge or involvement in relevant incidents, but their natural delivery or manner can be highly prejudicial to the process. It is quite understandable that the attributes that might carry a person to the top of their profession will include being strong-minded, independent, confident, assertive etc. These same attributes can get in the witness’ way when giving evidence.
Assurety’s method ensures that the witness gets a feel for what it is like to be challenged under pressure. With expert witnesses, the challenge might be about a theory of theirs that has attracted peer critique and might be something they feel strongly about. They will have the chance to understand how they respond to such attacks, observe and acknowledge their own idiosyncrasies (by watching video of their performance) and receive feedback on how to gain control over their emotions. The training also familiarises witnesses with the style of questions that might be used by representatives, judges or a litigant in person. This will give them some practice at unpicking compound questions, responding effectively to closed (leading) questions and generally adopting a demeanour that will generate more trust and confidence in their evidence, as opposed to what might otherwise be an emotionally-driven knee-jerk reply.
The most stark change I saw was in an expert witness who had given evidence tens of times but in courts outside of the UK. He had a particularly strident manner and considered it a show of strength or confidence to talk over the barrister or judge when they sought to interrupt. He was utterly convinced this was the best way to operate and believed that the court would be drawn to his commanding and confident delivery. Upon reviewing video footage of himself, he was quite shocked to see how he in fact came across as defensive which tended to indicate insecurity rather than confidence. Once he had been counselled about his role and the respective roles of others in the court room, he adopted a far more calmly confident approach that was ultimately more commanding and less grating.
I love doing witness training as a counterbalance to my work as a barrister and judge. I find that no matter how many times an expert may have given evidence, they always learn a lot from the session and feel it has improved their ability to give their evidence in an effective and authentic way. We are not in the business of trying to create cookie-cutter expert witnesses that all behave and act in the same way. We are simply honing a witness’ natural positive behaviours and weeding out any distracting or unhelpful characteristics to help mould them to be the best version of themselves.
