In March 2020, the pandemic hit, and most of the world was thrown into lockdown. The construction sector was able to continue to some extent, but almost overnight the whole industry was expected to adapt. The construction dispute sector was no different.
The industry pivoted from in-person to virtual hearings and by May 2020 we were testifying virtually. This was very much terra incognita and the speed of the change denied us the grace of a learning period. Aside from retreating to behind a computer screen, we readily continued to fulfil our duties as experts.
After a year of virtual testifying, it has become abundantly clear that whilst these duties remain the same, there are differences – some fundamental and others subtle – in how we fulfil them. This article examines some of these differences, the lessons we have learned and the extent to which these lessons can serve to improve expert oral testimony on a more general level.
For some experts, oral testimony is provided infrequently; so, despite being over a year into the ‘new normal’, many are yet to face these challenges for the first time. This only makes preparation all the more important. Issues that hinder the tribunal’s (or court’s) ability to see, hear and understand virtual testimony can have a significant impact on a case. If an expert is unable to provide oral testimony virtually due to a lack of preparation, it is akin to not turning up at all.
A difference between in-person and virtual testimony lies in the variables in the control of the expert. Previously, hearing rooms were set up in advance and the expert needed to do little more than turn up. However, testifying virtually requires the expert to ensure that their evidence is capable of being received by the tribunal. This necessitates consideration of a range of additional factors.
Investing in appropriate, quality equipment and testing that equipment in advance to ensure clear sound and video is essential. We need to be able to troubleshoot under pressure, know how to work microphones and cameras, know how to fix software issues and understand which application notifications need muting (and which do not). Ensuring that our computers are up to date well in advance also avoids embarrassing forced restarts part way through proceedings. Similarly, ensuring sufficient internet upload speeds will prevent mistakes in transcription, whilst being well-practiced with the controls of the video conferencing service will avoid an expert becoming the star of another viral cat filter video.
The key to a successful testimony is a precise, confident and engaging delivery. If we were to practice in an approximate and rough way (or not at all), this would be reflected (and, in the case of virtual hearings, magnified) in the testimony given. Ensuring this delivery requires consideration of how we are seen and heard on-screen. Our position on camera is important; we have seen other experts sitting far away and appearing small and timid, being plagued by echoes and muffled speech, sitting off to the side or even focusing the camera on only the tops of their heads. All these issues detract from what could otherwise be a strong testimony.
Familiarity with the relevant hearing documentation is also a key part of preparation. In virtual hearings, at least in our experience, electronic bundles are often issued in advance as paginated PDF documents. Being able to effectively navigate the documents whilst we deliver our evidence runs hand in hand with being precise. Drawing links between our oral testimony and documents in the bundle can help the tribunal to understand our evidence that much better. Using electronic (sometimes several-hundred page) PDF documents, rather than tabulated and indexed lever arch files, can make this more challenging and is something which can only be overcome with preparation.
Virtual hearings also require consideration of environment that is rarely necessary in person. An expert is effectively inviting the tribunal into their home, or their office. As experts, we therefore need to be aware of what is around us and the effect of this on how we are received. Is the room we are working in quiet? Can we control background noise if there are, for example, roadworks taking place across the street? What do we have on the shelves behind us (hopefully not a heavily politicised literature collection)? Are we able to guarantee that we can remain uninterrupted? Where we choose to testify and what influences that decision is personal and there is no right answer. However, if the home is a bubble of family chaos, then we need to be honest about how sensible this is. The primary requisite is to testify in an environment where we can ensure that our evidence is the best that it can be.
Testifying virtually is certainly different. In the early stages of lockdown, the extent of these differences came as a surprise, but it has been important to embrace them to be able to testify effectively in a virtual environment.
Not being in a hearing room means that the stimuli are different and gauging the atmosphere of the room is much more challenging. An indicator that might help an expert know they are overstepping the mark in person, such as a raised eyebrow from a tribunal member, is no longer as obvious, so the expert must be even more perceptive and focused on how their testimony is being received.
It should also be remembered that the formality and gravity of the situation remains – a point that is easy to forget in the familiarity of the home environment. Whilst virtual testifying requires access to a computer, it is important to avoid unsolicited messages whilst testifying and the rules of purdah mean it is best to ensure that all messaging software is turned off.
We need to be mindful that the tribunal cannot see outside the frame of our cameras. It may not be immediately clear what we are looking at if, for example, we pause to read the transcript on a second screen, so it is often helpful to narrate our actions. Additionally, when in person, gesticulation and other physical nuances help to convey meaning. However, in the two-dimensional nature of virtual hearings, movement is often amplified and becomes distracting, contributing to changes in audio volume and quality and being construed as nervousness.
Another challenge of not being in a hearing room with the formality of proceedings in view is that it can become more difficult to control emotions. Without the physical action of arriving and leaving the hearing venue, testifying virtually presents a different set of mental and emotional challenges. Applying the same rigorous preparation as when we attend an in-person hearing and controlling our surroundings can help to eliminate additional stresses. However, learning how we respond in different circumstances and avoiding situations that are detrimental to the delivery of testimony is personal and really only comes with experience.
It seems that an emotional delivery is not solely an issue for experts, as being bombarded with cross-examiners’ questions without any opportunity to respond is, in our experience, more common in virtual hearings. However, a raised voice in response will be intensified by the turn-based nature of virtual conversations; thus, being able to maintain patience mid-testimony has been particularly key.
Part of the reason for this is that overtalking comes across very poorly on transcripts, with stenographers recording “(overtalking)” rather than what was said by either person. This is particularly problematic in virtual hearings as video conferencing is not conducive to two people speaking simultaneously. An expert must manage their oral evidence to ensure that they are not only articulating it precisely, but also that it will be transferred accurately to the transcript. Precision is required to ensure testimony is given clearly, and conciseness is required to avoid possible interruption. Further to this, if there is still an answer to give to a preceding question, we have not been afraid to allow the cross-examiner to stop speaking before finishing our point – it seems to read much better on the transcript than trying to interject when they have already moved on.
As international hearings often include participants across different time zones, the time of day that we are required to give evidence may be unusual. Sometimes, our experts have chosen to travel abroad to make the time zones easier to cope with. A virtual hearing does not mean that an expert is prohibited from travelling if it is going to aid performance.
The expert also needs to be more reliant on visual aids. Expert presentations, although not strictly a feature of virtual hearings, can be a great tool for enhancing virtual evidence. We have seen experts produce word-heavy presentations and read from them verbatim; this does little to convey the key points of the expert’s evidence. However, a well-structured and professionally produced presentation gives an expert the opportunity to bring together key parts of the written testimony and engage the tribunal with those issues using clearly presented diagrams, annotated graphics and charts. The presentation also acts as a medium to support the oral evidence. Being able to use a presentation, linked with the bundle, to respond to cross-examination questions allows an expert to draw connections between the questions asked and the importance of the expert’s opinion to the case, and to record this on the transcript.
The efficiencies provided by virtual testifying make it practicable for hearings to be used in proceedings that may not previously have warranted them. Hearings have been occurring more commonly in adjudications, driven by the fact that a two-hour virtual hearing is a cost-effective way of helping the adjudicator understand the key issues in dispute. This is likely to stay.
Virtual testifying may also continue for smaller cases where there is little advantage in meeting in person. Small, fast-track and even some multi-track claims are well suited to virtual hearings and it seems to us that justice has been served more cost-effectively in these proceedings as a result. However, for larger, longer international hearings, where attendees are based over multiple time zones, there are drawbacks to not attending in person.
Hearing facilities, with all the associated costs of running and attending the process, are almost certainly more expensive than undertaking the process virtually. Be that as it may, whether virtual hearings are appropriate will be for tribunals and courts to decide, and experts must continue to deliver effective assistance in line with their duties through whichever platform is selected. Our experts are already being retained for virtual hearings at the end of 2022 and initial indications are that they are here to stay.
Whether or not virtual hearings remain in the long term, the experiences of the past year will undoubtedly improve in-person expert testimony going forward. The requirement to communicate with a greater emphasis on precision of language and to make use of all the tools available to convey complex principles has undoubtedly helped experts who have testified virtually to develop skills that will be put to good use for years to come.