Courtrooms are traditional, deferential places in which everyone knows their place in the hierarchy and jealously guards their professional space. The intrusion of an outsider can be regarded with suspicion. We saw an example of this during our evaluation of real-time computer-aided transcription (Plotnikoff and Woolfson, 1993). As the judge, lawyers and witnesses spoke at trial, a highly trained stenographer (whose skills cost more than her equipment) created a transcript seen immediately on the computer screens of the judge and lawyers, allowing them to annotate text as it appeared. At the start of the evaluation, the stenographer was seated below the judge’s bench, close to the witness box – the ideal position to hear what was being said. Nevertheless, a few days into the experiment, the stenographer was shifted to a seat further away where it was harder for her to hear accurately. She had been moved because she had taken the position normally occupied by the clerk when swearing witnesses and passing papers to the judge.

The ground rules hearing, a new type of case management hearing, is where intermediaries carve out their own space in professional, not merely physical, terms. For the first time, someone other than the judge or opposing counsel may interrupt questioning at trial (Henderson, 2015c, forthcoming). Those with a traditional view of the courtroom hierarchy may argue that intermediaries are unnecessary, that they are likely to interfere with witness cross-examination and possibly even compromise the judge’s control of proceedings. Intermediaries try to allay such concerns at the ground rules hearing. It is designed to facilitate ‘a more intense consideration of issues’ by bringing together intermediaries, lawyers and judiciary to resolve how best to communicate with vulnerable witnesses at trial (Ministry of Justice, 2014a, p 4). This chapter explores how ground rules hearings came about and why, 10 years on, intermediaries sometimes still find themselves negotiating their professional space on a case by case basis.

The case management background