Australia: Mindfulness: the art of conscious courtroom living

Last Updated: 11 July 2013
Article by Alex Viniarsky

Steeped in Buddhist traditions, mindfulness has been described as the art of conscious living, 'the ability to operate on purpose in the present moment non-judgementally;1 or, put another way 'the non-judgemental awareness of experience in the present moment.'2 So it came as a surprise to us when we read the title of Edward Siedle's3 article in Forbes: Mindfulness learned from testifying.4 At first instance, at least, the connection isn't readily apparent. That's because the players at trial, whose behaviours are informed and inculcated by courtroom procedure, are made to disregard social and conversational norms when stepping into court.

Drawing on his experience appearing as an expert in a Madoff related litigation, Siedle illustrates this apparent dichotomy by relating how in order to be an expert witness, one must forgo conventional norms of communication and adopt what he describes as mindful communication:

Testifying as an expert witness is unlike Interpersonal experiences in everyday life. We are all accustomed to speaking quickly and imprecisely to one another, half-listening and assuming we understand what others are saying—even completing sentences for them. ...Being an effective expert witness in a legal proceeding requires that an individual disregard social and conversational norms and instead focus upon mindful communication.

He continues by providing an apt description of what it's like to be an expert witness and prepare for trial:

'It's hard enough to write a fifty-page expert report detailing one's opinions in complex pension investments; worse still is having to spend twenty-four hours, in three eight-hour sessions, defending every word in the expert report perhaps a year or more after you've written it.

It's a disorientating process, amplified by the rules and procedures inherent in a legalistic setting, where to be too human, to show emotion is potentially adverse to the weight placed on the expert's evidence. Instead, the expert must, as Siedle describes, "maintain as much as possible a calm awareness of his body, feelings, and mind and seriously reflect upon every word heard and said. Anxiety and anger must be closely monitored due to their potential impact on testimony." Adapting one's personality to such artificial constraints on human nature, driven by the spectacle of trial, requires a flexibility of mind, a situational awareness, and an effective approach to communication.

At the heart of Siedle's article is his advice to expert witnesses, which is to adopt a 'mindful' approach to communication. What he means is something that we can all relate to—how to make the best of a difficult situation. Whether or not one agrees with the mindfulness of the Buddhist traditions and its connection to expert witness testimony, Siedle's advice is useful for all communicators, not just expert witnesses. Below are some of his tips, simple and clear, but easily forgotten when in the heat of trial:

  1. understand the question being asked;
  2. respond by answering THE question asked, not the question you would like to answer. Veering off course may incidentally lead to new lines of cross-examination;
  3. be cognizant of your emotions and body language when responding;
  4. clarify questions when you are unsure of what is being asked: 'The better we listen and reflect, the likely we will be responsive to others;5
  5. an expert witness must learn to distil knowledge in plain language—to illuminate not obfuscate; and
  6. your duty as an expert witness is to aid the court in resolving disputes, not in advocating the case of the party who hired you. It's imperative not to lose sight of this.

The last point is no more apparent than in the practice of concurrent expert witness evidence, a practice common in Australia, and a topic we have written about before.6 Before trial, both experts are usually asked to prepare a joint report, which will be used for adducing joint evidence. In such a scenario, the problems associated with a breakdown in communication may be compounded, particularly if experts try to one-up each other, which undermines their duty to the courts—to aid in understanding complex matters.

Ultimately, mindfulness at trial demands that you resign yourself to the process long before you show up. It's about coming to terms with having your reputation questioned, your opinions disputed, and your character tested. The goal being—that your awareness of the encumbrances faced at trial—will hopefully give way to a calmer disposition at trial, a mental clarity and awareness in the mindful sense. It may sound wishy-washy but in reality it boils down to the following advice: controlling what you can—your preparation—and not worrying about the rest—the rules and procedures that are beyond your control. To that end, Siedle does an excellent job in describing the problems faced by expert witnesses when testifying and offers some insights on effective communication that is relevant to all of us who appear as experts.

Footnotes

1Kabat-Zinn, J. (1994). Wherever you go there you are. Hyperion: New York, NY.
2Baer, R. (2003). Mindfulness training as clinical intervention: A conceptual and empirical review. Clinical Psychology: Science and Practice,10(2), 125.
3According to his profile on Forbes, Edward Siedle is a former SEC attorney, former Legal Counsel and Director of Compliance to Putnam Investments. For over 20 years, he owned securities trading and investment banking firms. He has appeared as an expert in forensic investigations of the money management industry. He has testified before the Senate Banking Committee regarding mutual fund scandals and as an expert in various Madoff and other litigations.
4 http://www.forbes.com/sites/edwardsiedle/2013/07/01/mindfulness-learned-from-testifying-as-an-expert-witness. Accessed 02 July 2013.
5Ibid.
6See in general the following blog post - http://www.kordamentha.com/forensic/forensic-spotlight-with-kordamentha/posts/forensic-spotlight/2013/04/19/judge-enjoys-hot-tubbing-finds-advantages-in-concurrent-evidence and more specifically the following forensic matters publication for further information on concurrent expert evidence : http://www.kordamentha.com/docs/for-publications/issue-13-01-some-like-it-hot.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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