How can expert witnesses support the courts in their response to the pandemic?

FIONA HOTSTON MOORE of FRP Advisory outlines the ways expert witnesses can support legal counsel amid increasing pressure on the UK court system

[THE COVID-19 PANDEMIC has brought additional pressure and changes to UK court proceedings. A recent report by the House of Lords indicates there has been a significant rise in the number of court cases as a result of the pandemic and the impact it has had. It has also shown that the pandemic has accelerated the funding deficit, adding more stress to a system that was already under considerable strain.

An example of this can be seen in the Family Court. Before the onset of the pandemic in March 2020 there were nearly 56,000 outstanding cases waiting to be heard; and while proceedings were switched relatively quickly to virtual hearings that spring, that backlog had escalated to 67,000 cases by mid-summer 2020 alone.

Not only has there been a notable rise in the number of divorce cases following periods of lockdown, there has also been a surge in the number of family shareholder disputes. Such disputes are becoming increasingly common across a wide range of industries, including farming, retail and manufacturing.

More significantly, the report estimates that, even if days spent in court could be increased, it might take three years to reduce the existing backlog to pre-pandemic levels.

Against that backdrop of increasing pressure, it is clear that urgent steps are needed to help relieve the strain on the system. The House of Lords has shared a series of recommendations to help clear the backlog, including increasing available court time by utilising the new Nightingale courtrooms and making greater use of part-time and retired judiciary. Further recommendations include a more innovative approach to cases, including using technology for virtual hearings and greater use of alternative dispute resolution (ADR) such as mediation.

But there is more that can be done to alleviate pressure in addition to those measures. As part of that, it is crucial that the skills and expertise of expert witnesses, and the role they can play in supporting matrimonial cases and commercial disputes, are more widely understood and utilised to help address the mounting backlog of cases.

Increasingly, forensic services experts are called to give evidence and be cross-examined concurrently, which helps clients to avoid what can be a costly court process. They also play an increasingly important project management role in mediation and ADR.

Giving concurrent evidence in ‘hot tub’ hearings

‘Hot tubbing’ is a colloquial term which refers to the court process of calling expert witnesses to give evidence and face cross-examination concurrently, rather than sequentially, and is a practice that is growing in prominence.

Although it has been available in the English courts for many years, adoption of the practice has been much slower here than it has in other countries. However, with the move to virtual hearings and a willingness to try new approaches, the courts now seem more willing to adopt hot tubbing for cross-examination of experts.

Allowing expert witnesses to give concurrent evidence makes the whole process more streamlined and is encouraged to reduce court costs. In family cases the average divorce costs £15,000; but where the matter requires a hearing and the attendance of expert witnesses to give evidence on the valuation of a business, the costs can be considerably higher. For example, if three expert witnesses were previously lined up to be cross-examined sequentially over the course of three days, bringing them together to be cross-examined concurrently instead would see the timeframe reduced to less than a day. Not only will that help to reduce court fees, but also the costs of the expert witnesses, lawyers and barristers involved.

Of course, an expert giving evidence in the hot tub is likely to have vastly different experience from one who faces the more traditional approach of sequential cross-examination. In the hot tub the process adheres to a structured discussion between the experts and barristers, which is chaired by the judge; so it is typically less adversarial. The experts are encouraged to comment on each other’s views, to clarify common ground and to reduce perceived disagreements as far as possible.

Ultimately, the expert witness will have less thinking time in the hot tub and will face questions from fellow experts alongside questions from the barristers, which will quicken the overall process.

It’s fair to say that virtual hot tubbing, while daunting, can be an extremely cost-effective process of giving evidence. Ideally, the joint statement of experts will have been produced and agreed between them before the hearing, and the barristers and judge will have agreed an agenda for topics to be considered at the hot tubbing.

To help prepare the process and drive efficiency ahead of the hot tub, experts should address a number of practical issues, including: • Determining what IT platform will be used and sharing the details • with the others attending • Receiving the court bundle before the hearing and downloading it • onto a local computer • Establishing who will attend the hearing – including assistants – and • ensuring all those attending have stable connectivity • Ensuring there is no background noise or potential for interruption

The growing prominence of mediation and ADR

Forensic experts are increasingly invited to attend mediation, arbitration or roundtable discussions, with the intention of assisting the parties involved to reach a settlement before it escalates to the considerable expense of a court hearing. ADR can be very effective in reducing both the costs of litigation and bringing long-standing and stressful disputes to a conclusion.

Not only can forensic experts add value before mediation – in preparing documents ahead of ADR, to explain the positions to the mediator or arbitrator and assist the parties in understanding the strength and weaknesses of their respective positions – they can also assist in dealing with any accounting or tax questions during the meeting.

With the growing backlog of cases, the courts increasingly view claimants who do not try mediation as a first measure to resolve a dispute unfavourably. There is on-going discussion about the idea of making mediation compulsory – albeit there is a concern that this would make it less effective and it could be perceived as a box-ticking exercise. In our experience, mediation can be very effective in resolving disputes even where the parties have very different views of the financial position, providing the mediation is entered into with an open mind. q