I recently sat in to watch several key portions of a well-publicised medical negligence trial, held in Perth in late 2011.
As with most such cases, each party called and relied upon leading expert medical witnesses, to comment on the quality of medical care and advice the patient received. In this case, because of the type of case, such experts were neurosurgeons + neurologists.
One section of the trial involved questioning of a formidable expert called by the Defendant, a neurosurgical specialist who’s evidence was conducted via video-link from overseas.
Such expert, by my assessment, was generally a very knowledgeable and thoughtful witness, who’s evidence was given in decisive terms + without hesitation.
An exception to this was a short segment of such expert’s evidence, when asked a particularly curly question by the barrister representing the patient. In contrast to the balance of the expert’s evidence, the expert’s answer to this question was given in, to my eye, a far less convincing manner. There was a long pause before he answered, his body language when asked the question changed noticeably (he sat back from the table in front of him, folded his arms and generally adopted a defensive posture) and the tone of his answer when given was uncertain and hesitant…
Yet the transcript of such evidence, which is all that is kept, will demonstrate none of the above subtle, yet potentially key features of the evidence. The literal words of the answer, which is all the trial judge will now have (other than his direct memory of the evidence + any notes he took), or which any appeal court may have access to, in the event of an appeal, will convey none of the subtle aspects to his evidence described above..
In this day and age, this seems to me to be unnecessary, both for the trial judge, but also any appellate court. As stated, the expert’s evidence was given by video link and software to record such video – or any ‘live’ evidence at trial is available at negligible cost (with navigation controls to allow speedy location of any given point etc)… Why the entire course of evidence is not recorded both in terms of video + actual audio and accessible, as well as being transcribed is hard to understand.