Virtual Testimony: Brave New World for Expert Witnesses

By Toshi Dezaki

September 3, 2020

Serving as an expert witness for more than 20 years, I thought I was prepared for anything. Then the coronavirus outbreak occurred. Suddenly, I was faced with having to testify via videoconference, and I quickly discovered a brave new world for expert witnesses thanks to COVID-19.

The pandemic has forced many of us to work remotely and have experienced the sometimes subtle and sometimes striking differences between face-to-face and remote communication. On conference calls and in videoconferences, it is harder to read body language and non-verbal cues. There are awkward pauses, moments of silence, and people talking over one another. There are often children screaming and dogs barking, not to mention the home decor in the background. There are also technical glitches, such as faulty Wi-Fi, and participants forgetting to mute, or unmute their microphones. Now those same issues are challenging expert witnesses in legal proceedings.

Video Depositions: Passing Trend Or Here To Stay?

I encountered this new experience in early April, when I was called to give a deposition as an expert witness in a construction dispute. Under normal circumstances, I would be ushered into a conference room with other stakeholders, including the attorneys representing parties in the lawsuit, corporate representatives, an opposing expert witness, and a court reporter, among others.

Social distancing and shelter-in-place guidelines eliminated the in-person “old-normal,” and the deposition occurred instead through videoconference. I quickly learned that this deposition would be like none other I have attended, and a lesson in the “new normal” for witnesses.

For instance, whether by design, or the result of technical difficulties, the opposing party’s attorney was not on camera. This placed me at a disadvantage, as I was unable to look the attorney in the eye, read the attorney’s body language, or pick up non-verbal signs. Gone was my ability to look at opposing counsel and see any reaction to my responses. Yet, the opposing counsel had an advantage in being able to see my facial expressions and body language, because I was on camera.

Similarly, the videoconference left me unable to gauge the reactions to others watching the deposition. A key player in this process is the opposing expert witness. In an in-person deposition, the opposing expert witness will sometimes pass a note to opposing counsel after I’ve answered a question, often with a follow-up question or additional point of inquiry. When I see that, my radar goes up. I know something I said was of interest to the opposing side, and there will likely be additional examination on that specific topic. It gives me time to gather my thoughts and prepare for the coming line of inquiry.

In the video conference deposition, those important non-verbal clues were lost. Just like any video conference, everyone was joining from a different location. So, the opposing expert witness could not hand a note to his attorney. But there were other ways they could have communicated. The opposing expert witness could have talked to the attorney on a cell phone or sent a text message. I lost the benefit of witnessing this exchange because I couldn’t see the opposing attorney on video. This left me less prepared for future questions.

Another shortcoming involved the long periods of silence and awkward pauses during the video deposition. In a face-to-face meeting, I immediately know why the opposing counsel has halted the conversation. Perhaps the attorney is looking at notes, a legal document, or one of those opposing expert notes. I couldn’t tell on the videoconference.

Some of the periods of silence lasted 60 seconds, which seemed like an eternity. What was the opposing attorney doing during that silence stretch? My mind starting racing, wondering whether my opposing expert witness was on the phone or sending a text.

In an in-person deposition, pauses are welcomed. They are shorter in length (or at least seem to be), allow my attorney to object to a question, and give me time to recover and collect my thoughts during a line of questioning. In fact, these natural pauses allow me to understand the opposing attorney’s cadence to my examination. Because of the gaps of silence and long pauses on the virtual deposition, there was no opportunity to understand the opposing attorney’s rhythm. That said, it is my experience that the examining attorney generally likes to dictate the cadence of a deposition. But the virtual deposition allowed me to command the flow of the deposition more than I am usually afforded in a live setting.

Additionally, as is typical of the conference calls taking place each day around the world, there were times during my testimony when we would talk over each other because we didn’t always know when the other person had finished speaking. It was just one more way the rhythm of the conversation was disrupted.

Like any videoconference, a virtual deposition is subject to technical difficulties. It’s one thing to drop out of a Zoom call when it is a routine office meeting. It is more serious in a deposition. Having the dog bark during a staff meeting on Skype can be cute, but it is not a welcome distraction in a deposition.

However, when it was time for the opposing expert witness to testify, he chose to do it at home, presumably because he had a lower risk of distraction. But there were a couple of moments when he encountered some technical issues, perhaps caused by his home WiFi.

Another technical hurdle I encountered focused on the screen saver. As with all depositions, live or virtual, I am focused on the questions asked by the attorney… specifically, I am focused on the current question. However, given the virtual nature of the examination, I do not think to move the mouse on my computer. As a result, the screen saver would engage because the computer does not detect any activity. This happened several times throughout the course of the day and caused some slight disruption, both in terms of flow and concentration.

In hindsight, I also would have used two monitors during my deposition. One monitor would be focused on me as I was speaking, while the second would allow me to read the live written transcript as it was recorded by the court reporter. The ability to read the live transcript would be one more way for me to feel more comfortable and confident as a witness. This would be a plus as such an advantage is seldom available when participating in an in-person deposition.

Meanwhile, all parties in attendance were able to sit in and watch the videoconference testimony. They brought their own technical disruptions to the meeting. Someone would forget to mute the microphone, and cell phones would ring, or conversations could be heard while I was trying to testify.

The internet, Wi-Fi and cellular data are all wonderful technologies that support a virtual deposition. But sometimes these gatherings are at the mercy of the U.S. mail. Consider the documents that must be reviewed by an expert witness. In an in-person deposition, the opposing attorney hands the witness the documents and embarks on a line of questioning. In a remote deposition, the lawyer must mail out those documents in advance.

I received the documents by mail in advance of the deposition. But I did not open the packet until the deposition because I felt it was fair and honest. In a face-to-face deposition, I would not have had a chance to review documents until they were handed to me by the opposing attorney.

The opposing expert witness did lose the paper chase. His documents did not arrive in time by mail. He was able to somewhat cover for the loss because many of the documents were related to his report on the case, which he could access using his own computer.

Should videoconference depositions become the norm, there might be some issues concerning documents. For one, when should the expert witness be allowed to open the mail and review the documents? Does reviewing the documents in advance taint the testimony? And, given the volume of documents presented at some in-person depositions, will attorneys be willing to spend the time and expense to copy and mail encyclopedic volumes of documents to parties involved in a deposition?

Conclusion

While social distancing and shelter-in-place guidelines exist, videoconference depositions will replace face-to-face proceedings. Some ground rules can be established to bring a degree of fairness to the process. Here are a few suggestions:

For one, parties should agree that all participants be on camera to allow witnesses and attorneys to see one another during testimony. Guidelines should be set as to when witnesses can review documents pertinent to a case. And, the meeting host should be able to mute the microphones and of participants to eliminate distractions.