Don't underestimate the psychological impact of remote hearings

28 October 2021 Consultancy.uk 4 min. read

Berkeley Research Group has released a new report: The Psychological Impact of Remote Hearings. Daniel Ryan, a Managing Director and Expert Witness at the global consultancy and a report co-author, reflects on one of the learnings from the study: don’t underestimate the psychology that comes with remote hearings.

It has been interesting to reflect on the different experiences of remote hearings over the past 18 months as part of the study. As with other aspects of our professional lives since the Covid-19 pandemic began, resilience, innovation and flexibility have meant hearings have been able to continue efficiently and effectively around the world. However, our research found that they also had an often-unseen psychological impact which cannot be simply ignored. 

The cross-border study, which consulted with expert witnesses, lawyers and psychologists located from London to New York and Hong Kong, focused on the psychological impact of conducting proceedings remotely and the extent to which these had affected the outcome of hearings and tribunals.

Don't underestimate the psychological impact of remote hearings

We found that the virtual courtroom setting had a psychological impact, both positive and negative, to varying degrees, according to the majority of those interviewed for the report. On one side, expert witnesses responded positively to being able to attend proceedings from the familiarity of home and with a virtual barrier during cross-examination, which rendered the traditional techniques deployed by lawyers less effective.

However, some also reported having to resort to imagining the traditional physical environment to aid mental preparation for each question and help maintain focus while avoiding being lulled into a false sense of security.

The importance of preparation was a strong theme identified in the report. Virtual hearings and tribunals lack the intensity or anticipation associated with an in-person deposition which helps build confidence and ensures that everyone is on the same page. Combined with a lack of pre-tribunal team building, this can lead to miscommunication between counsel and expert witnesses.

Such is the psychological importance of the mental preparedness provided by engaging with their teams in a physical setting, expert witnesses stressed a clear preference for travelling to conduct preparations in person, even if the hearing was itself to be conducted remotely.

At the same time, removed from their natural position of authority in the physical courtroom, arbitrators and judges were reportedly less inclined to interject on procedural grounds, which can detract from the value of cross-examination to the tribunal.

The psychological perspective went deeper, highlighting the subliminal processes that can kick in and sway decision-making. Crucially, it was noted by the study’s participants that juries, judges and arbitrators were taking less interest in their testimonies and decisions were being reached considerably quicker compared to in-person hearings.

One argument put forward was that decision makers were associating the frustration of technical issues with those providing evidence or spending a greater proportion of their mental capacity managing an unnatural situation, rather than carefully considering all aspects of the evidence provided.

In response, a legal psychologist made the case for withdrawing video from the equation altogether, thereby allowing decisions to be made based purely on speech, thereby lessening the potential impact of unconscious bias - a proposal worthy of careful consideration.

However, the extent to which these points were strong enough to influence proceedings is debated. Despite some notable individual examples, the outcome of proceedings is widely considered to have been the same as if they had taken place in person under normal circumstances. After all, expert witnesses are trained to deal with the additional anxiety and pressures which accompany the physical, and often unfamiliar, courtroom setting. Yet, with many cases still awaiting judgement, the true extent of the impact may become clearer over time and with the benefit of hindsight.

What is clear is that the arbitration system has been able to continue largely unimpeded thanks to remote hearings and tribunals. However, the report raises some thought-provoking observations which may not have been initially obvious and may require addressing to some degree as this format looks here to stay in some form for the foreseeable future.

Disclaimer: The opinions expressed in this article are those of Daniel Ryan and do not represent the opinions of Berkeley Research Group or its other employees and affiliates.