Would you avoid taking a case to court just because you didn't want to be a witness? Does the phrase "expert witness" scare the living daylights out of you? Do you "um" and "ah", excusing yourself with: "Well I have a little bit of knowledge, but I wouldn't like to be called an expert"? You are not alone. Margaret Laing reports

Upon occasion EHOs have to appear in court - usually as expert witnesses on the side of prosecution. For those who have been in the witness box, the wiles of the defence counsel should come as no surprise. But the fact that they're not surprising doesn't stop them from being rattling and distracting, even to a confident witness. This is where a little insider information comes in handy. Witness training programmes have been developed to demystify the legal system and the common perception of court being a frightening combination of Ally McBeal and LA Law.

There is a demand for boosting confidence and knowledge in this area as far as most EHOs are concerned. Writing to Environmental Health News last year, Peter Reynolds complained about the laissez-faire attitude among EHOs about taking investigations forward into prosecutions.

Mr Reynolds said he was fed up with EHOs' reluctance to use their enforcement powers, and linked this to their reluctance to go to court. A possible cause of this, he said, was "a culture of fear and blame which persists in many local authorities, which would implicate them if a court case was lost".
"It is incumbent on chief EHOs to ensure that their inspectors receive the necessary support and training to feel confident in taking prosecutions," wrote Mr Reynolds. "This culture of support is sadly lacking in many authorities."

Mr Reynolds' theory may be right. The majority of candidates at the CIEH's first witness training programme were afraid of being a witness, but at least they were doing something about it. "I've got a court case coming up, so I thought this would give me some preparation" was a common remark. The programme was hosted with the aid of a professional witness training company, Bond Solon Training. Mark Solon, ex-defence lawyer, led the course of rigorous theory and practical training for a large group of EHOs from both private and public sector.

The morning started off with some warm-up questions about the class's previous court experience, and personal impressions. Most of the delegates nodded in agreement when a "traumatic" experience was mentioned, but they agreed that anticipation was often worse than the realisation.

One woman (preferring to remain anonymous) became quite animated: "It's the magistrates that gave me a hard time - I was told 'take your chewing gum out' when I got into the witness box." The room had a good laugh at that until another victim blurted out: "The problem is the unexpected nature of being cross-examined - they pose questions in a 'yes' or 'no' fashion, but you want to say so much more."

Mark promises firmly that by the end of the day they will be confident to give evidence in court. "You're already doing 80 per cent right," he said, "it's the other 20 per cent we want to work on." That 20 per cent covered the "tricks of the trade", such as speaking clearly and simply. The first and foremost was preparation - "If you get that right, you may not have to go to court at all."
"When does preparation begin?" Mark asked the group. The answers varied from "when you know the case is going to court" to "when you think the case might go to court".
Mark shook his head: "Sorry. Virtually everything you do is evidential. So from the start of any case, bear in mind that it could go to court. When you begin, think about the issues of court."
The importance of contemporaneous notes was reiterated throughout the day: the notes are going to make or break your case. "Be professional about your notes - don't make shopping lists! You never know if they'll be needed in 10 months time and then find that they don't make sense any more."
Be precise at all times about record-keeping. At worst, poor records and inaccuracy could humiliate the witness in court, or even lose the case. At best, professional record-keeping could keep the case out of court altogether.

THE PURPOSE OF COURT
"Is it your role to win the case?" Mark looked across the whispering room. No-one was sure. The group was advised: Your role is to make it easy for the judge and jury. That is all.
A court is an adversarial system - a fight - with a set of opponents. That is why accusing a witness of being incompetent is normal, not personal. Be aware that lawyers will try to hook you, personally, so as to discredit your professional evidence. "It's a powerful technique," said Mark. "The only way around it is to keep your eye on the evidence."
Mark asked the group if anyone had tried to "have a go" at counsel before, ie tried to return the abuse. Tentative hands went up. The instruction was clear: "Don't argue with a lawyer - you will lose." One man moaned: "You're in court every day! We're not! We're naturally nervous."
The group was reminded that lawyers' techniques are just props, used to distract the witness and draw attention away from the meaningful evidence. Being accused of racism, having your name mispronounced, or being ignored and patronised, to name a few, are tools that need to be recognised for what they are. The trainees are advised to keep their eye on "the gift" in the question and to ignore the rest.
How can there be a "gift" in any berating, sarcastic question that undermines the witness's expertise? An expert will have worked in his or her field over a period of time, most probably hold qualifications, and have concrete experience and knowledge of the field. This doesn't mean the expert knows everything however. The expert has an opinion, which is based on observed facts. It's the opinion that the court needs to hear. Unfortunately this is what counsel will attack.

The expert witness should follow a three-stage approach of question, facts, opinion.
The question: How long had the dirt been under the kitchen counter?
The facts: I took scrapings and photos, (exhibit A)
Expert opinion: my opinion is two days, BECAUSE of the thickness of the dirt, which can be observed in the pictures.
Facts should be stated first, followed by opinion. Crucial to opinion is "because", which backs up a statement before it can be counter-attacked by counsel. Following this format will allow each question to be a gift, an opportunity to share knowledge with the court.
In theory, this all sounded quite charming: gifts and opinions and taking control.
During the lunch break the trainees had to prepare for the afternoon mock court session. They teamed up in pairs and worked on cross-examination questions based on case studies. Six EHOs would be taking the stand, and have an opportunity to test their new skills.

IN SESSION
"Don't make jokes - leave that up to the judge," Mark advised the first volunteer. "If the judge makes a joke, you can laugh." He asked the frayed witness to return to his seat.
Another EHO took the stand, and the flood of questions began. Mark sighed, twiddling his pen, and checking his mobile for messages, while the witness worked her way around his knife-edged questions.
A mere handful of his distracting, and evidently off-putting, techniques were displayed, but they did the trick every time. The witnesses were getting shirty, each one succumbing to Mark's baiting. The morning's session on court composure seemed very far away in the face of a one-on-one attack. After two minutes in the witness box, one man was clenching his fists and muttering about having to keep calm. Even in a mock session, tempers run high.
At the end of an emotionally draining afternoon though, the trainees seemed very positive: "He demystified the process and made me aware that counsel is not being personal - just professional," said one trainee. "This course should be a requirement for all enforcement officers no matter how much previous court experience they have had." Peter Reynolds should be happy to hear that the culture of "fear and blame" seems to be edging towards its judgement day.