A recent case from the United States highlights how easy it is for a hearing to go sour, especially if you stray in to the world of witness coaching and leave the microphone on.
The plaintiff alleged she slipped and fell at a restaurant, and the defendant was at fault. The matter proceeded by way of virtual hearing, with witnesses giving testimony remotely via video conference.
During the course of the hearing, the plaintiff had difficulty manipulating the cursor on her computer screen, which she was using in an attempt to identify exactly where she had fallen; a photo of the scene of the accident had apparently been uploaded for that purpose.
In view of the witness’ difficulties, the court adjourned for lunch, with the trial judge instructing the plaintiff’s attorney to “straighten out” the issues with the photo and the operation of the cursor.
Following objection from the defence counsel, the judge gave clear warning against any witness coaching or other person being in the room when the plaintiff resumed her testimony.
Unfortunately for the plaintiff’s counsel, the microphone at their remote location was left on during the break, and the conversation he had with the witness was recorded.
While it may not have been counsel’s intention, the conversation contained what was clearly witness coaching; it may have been that he was attempting to explain to his client how to give her evidence via the computer, but the words chosen left little room for any other conclusion than the lawyer was telling his client what to say.
When the trial resumed, defence counsel – who had heard the conversation – sought a mistrial.
After listening to the recording, the judge declared the mistrial and dismissed the plaintiff’s case with prejudice, meaning the matter could not be re-filed. The judge also ordered the plaintiff’s counsel pay the costs of the defendant’s counsel personally.
On appeal that decision was upheld. While it may be that the plaintiff’s counsel had merely engaged in a very clumsy effort at assisting his client with technology, he does not appear to have argued that at any point.
The fact the court found he had engaged in a ‘fraud on the court’ means that he may face further sanctions.
The main lesson from this case is, clearly, do not engage in witness coaching, but other lessons can be taken from it:
- When involved in a remote hearing, ensure your witnesses are familiar with, and can operate, all of the technology they will need to use before the start of the hearing. In this case, had the witness not had difficulty with the computer, the opportunity/temptation for witness coaching would not have arisen;
- In any hearing, if a witness is on the stand when a break is called, do not engage with them. While in this case the lawyer had been directed to “straighten out” the issues, that could have been done by directing a clerk or paralegal to assist the witness; it is prudent to avoid even the appearance of impropriety at all times.
- Ensure the microphone is off during breaks in remote hearings. Obviously, in this case, a fraud was prevented because the microphone had been left on, but it is not hard to imagine how a client’s case could be compromised even when a lawyer is doing everything right, simply because their opponents could hear discussions had during the break.
Remote hearings are likely to become more common now that they have shown their worth, and they come with challenges unique to the format.
The temptation to treat them as somehow different or less formal than an in-person hearing should be avoided, and for further information practitioners should consult the QLS Ethics Centre’s Guidance Statement No. 25 Professional Standards when Appearing in Court Remotely