Attending court to be cross-examined as an expert witness can be a stressful experience, made more difficult by the complexity of the environment. We have developed this general guide for experts in the hope that it will assist in the process of providing evidence.
Adhering to court etiquette is important when providing evidence as it demonstrates respect for judicial officers and the legal system. These are basics for any person in a courtroom. Though they may seem trivial, practicing these in court conveys to a judge that you are an experienced expert who is well versed in the nuances of court procedure.
Court during COVID-19
The manner of providing and presenting evidence in court has dramatically changed in the last few months. Expert witnesses providing evidence via AVL (audio visual link) has become a necessity during the pandemic.
If you are called upon to attend a trial via AVL, try to find a quiet place to give evidence and inform other occupants of the household of the importance of silence. A stable internet connection is vital. If you do not have a stable connection, speak to the solicitors for your matter. Generally, the solicitors will be able to organise for you a space in their office from which you may give evidence.
Please take note that providing evidence via AVL should not decrease the formality of the practice. While you may not be physically in court, it is still the accepted practice to dress formally. This may seem cumbersome, but a judge will notice, as occurred in the recent case of Blackmores Ltd v Jestins Enterprises Pty Ltd  NSWSC 1177. Justice Ball made pointed remarks not only about the expert’s dress (“he was wearing a sweatshirt”) but also his casual conduct whilst in court: “when he was not giving evidence himself [the expert] appeared on occasions to be attending to text messages or emails on his mobile telephone”. The expert’s inappropriate manner in court culminated in the Justice Ball commending that “there may be a question whether it is appropriate for him to charge for the time he spent giving evidence”.
The case acts as a strong reminder for experts to adhere to court etiquette. If you are attending a trail by AVL, please remember to dress formally and put aside any digital devices not required for the hearing.
Addressing the Judge
In most cases the correct address is “your Honour”. This is the same for any judge in the Supreme, Land and Environment, Federal, and District courts.
If you are before a Commissioner, the correct address is “Commissioner.” The correct form of address for Tribunals is dependent on the specific type or tribunal, however when dealing with Members it is appropriate to address them as “Member” followed by their surname.
Whom to address your speech to?
Before attending court, it is important to refamiliarize yourself with the Expert Code of Conduct and particularly that your duty is to the court, not your instructing counsel. As such, your answers to questions counsel poses should be directed to the judicial officer present in the room as evidence that you are providing is for their benefit. This is not a hard and fast rule as some experts that are well versed in being cross examined oscillate between directing their response back to the cross examiner and judicial officer.
A court case usually begins at 10:00 a.m. but it is imperative that you arrive earlier to set up and have any required discussions on the case beforehand. The judicial officer will be entering the room at 10:00 a.m. and it is very evident if somebody enters the room and sets up their belongings after or during that time.
At the commencement of court, a court officer will knock three times and request that the occupants of the room stand. The judicial officer will bow to the court who will bow in return. The bow is to be directed at the coat of arms which is mounted on the wall behind the judicial officer.
If you need to enter or leave a courtroom after court has commenced, pause briefly in the doorway, and bow to the coat of arms. Try to be as unobtrusive as possible.
Waiting to be called
If you are waiting in the galley to be called to the witness box, it is customary to sit and listen to the case. Taking out a book or a file or working on your phone is considered disrespectful. In addition to this, please turn off your phone when you enter the courtroom.
If you need to work on other matters while court is in session (a possibility as impromptu meetings are regularly held during court), there are available meeting rooms on most floors.
Courtroom set up
Every courtroom is set up differently. Depending on the court there should be a court officer who will direct you to where you shall sit, or the solicitors will give you an idea. However, when making your way to the witness box do not walk between the bar and the bench. This is considered disrespectful and will immediately put the judicial officer on edge. Instead, go the long way around. A court officer should be available to indicate the correct direction.
Dress and manner
A courtroom is a formal environment. A suit is preferred, but a collared shirt is also appropriate when paired with long pants. For women, business wear with a blazer is very common, as is a suit. A tribunal may be more relaxed. However, if you are unsure it is best to err on the side of caution.
Food and drink
A judicial officer will notice if food or drink has been brought into their courtroom. A common mistake is that occupants forget they are carrying a cup of coffee after a break and set it down next to them. If you have coffee before court starts, either finish it or throw it away. In the witness box, you will be provided with a glass of water and no other liquids are permitted.
What to bring to court?
When attending court, it is important to bring copies of your report (the most recent version). If you wish to bring additional photographs or information, copies are required for all parties (up to 6 copies). In cases where you may be working off maps, diagrams, and or plans it is best to have a large copy.
The courts are slowly moving towards using laptops more in court, so there are likely to be outlets to plug in a laptop in the courtroom but not in the witness box. However, courts will require hard copies of additional documents. Furthermore, there may be instances in which the court requires you to highlight points, circle objects, or make adjustments. It is easier in most cases to rely on hard copies rather than laptops in court.
Swearing in witnesses – oath or affirmation
When you approach the witness box a court officer will approach you and ask if you wish to swear an oath or affirmation. The oath is sworn on the bible or Quran if requested. When being sworn in, face the judicial officer and not the court officer. If you are facing the wrong way, the court officer will stop administering the oath and redirect you.
If you are “hot tubbing” (multiple experts in the witness box simultaneously) then each expert must be sworn in separately.
Before You Present the Substance of the Evidence
After you have sworn an oath/affirmation and before the examination begins, you will be asked to recite your name, occupation and business address and confirm that the curriculum vitae appended to your report is true and correct.
Examination by the solicitors can be a very long and frustrating experience. It is difficult to sit in the witness box and provide direct responses to solicitors’ questions whilst being unable to ask similar questions or respond in kind. It is important to remember, however, that the solicitors who have engaged you will address any question that they find inappropriate or unhelpful.
If you do not understand the question or need it repeated it is imperative that you voice this concern. It is better to ask for the question to be reworded or explained multiple times than to provide a misguided answer. If you need to elaborate on an answer, make that clear and request further time.
One of the most important points to keep in mind when providing expert evidence is to stick to the question being asked of you. The solicitors have formulated these questions specifically to assist with the progression of the matter.
The reason you are providing evidence is because you are an expert in the field. However, please remember that nobody else in the room is an expert and as passionate about the topic as you are. On that basis, keep the technical jargon to a minimum and your answers concise.
Court commences at 10:00 a.m. and finishes at 4:00 p.m. The court will generally break around 11:30 a.m. for morning tea and at 1:00 p.m. until 2:00p.m. for lunch. During those periods, the courtroom itself needs to be vacated and will be locked. Please remove any belongings that you will need access to during the breaks as you will not be able to get back into the room.
If in the middle of providing your evidence, a court break is taken, you will be directed by both the solicitors and judicial officer that you cannot speak about the matter until you have been excused.
As court days run shorter than business days, a half day is only three hours and a full day is six.
We hope that this article provides some insight into the functions of court and providing evidence. If you have any questions about court attendance, please do not hesitate to contact ExpertsDirect as we are happy to assist.