The latest pandemic surge is causing a new round of trial delays and courthouse closures in some parts of the country. Lawyers can only guess when the “new normal” will arrive. Defining a post-pandemic “normal” may be just as challenging as working during a pandemic.
Remote deposition testimony has become common. It took time for lawyers and court reporters to work the kinks out of remote deposition technology and procedures, but most lawyers have adjusted to the change. Whether remote depositions should continue after the pandemic is a subject of debate. Positions may change from case to case, depending on whether a remote deposition is likely to be helpful or harmful to the lawyer’s client.
Courts have routinely conducted hearings remotely, although permitting a trial witness to testify from a remote location is less common. The federal rule permits remote trial testimony in civil cases “for good cause in compelling circumstances and with appropriate safeguards.” Whether the pandemic constitutes good cause or compelling circumstances is a question that courts decide on a case-by-case basis.
Procedural rules in arbitration tend to be more relaxed than court rules. While the rules that govern arbitration proceedings differ, the most common sets of rules vest the arbitrator with considerable discretion to take testimony remotely.
Impact on Expert Witnesses
Lawyers view remote testimony in terms of strategy. They might not give much thought to the psychological impact of remote testimony upon a testifying expert. A report by the Berkeley Research Group examines “the possible psychological impact of different ‘hearing’ environments” upon participants in arbitration proceedings, including expert witnesses. BRG is a global consulting firm that provides services to clients in a variety of industries.
The report is based on interviews with participants in arbitration hearings that used remote technology. After spending a few months overcoming glitches in that technology, participants generally developed a favorable impression of remote hearings.
Expert witnesses, in particular, had a positive response to remote hearings. Testifying from the expert’s home or office places experts at ease. The experts believed that the familiar setting allowed them to consider questions more thoughtfully, free from the distractions that are inevitable in a crowded conference room or courtroom.
The report also highlights the perceived benefit of “the additional virtual barrier between the expert witness providing evidence and those tasked with cross-examination.” The report suggests that attempts “to place pressure on and unnerve” expert witnesses were less effective when the lawyer could not confront the witness in a face-to-face setting. It’s difficult to badger a witness from afar.
Experts who testify in person may feel bullied by aggressive cross-examination tactics. While remote testimony may be a disadvantage for lawyers who want to rattle experts during cross-examination, it is fair to ask whether intimidation is a tactic that promotes just results. A witness might be more likely to give thoughtful and reasoned answers when aggressive cross-examination tactics are offset by distance.
On the other hand, comfort cuts both ways. When a cross-examining lawyer cannot intimidate a witness, a better tactic may be to lull the witness into a false sense of security. Remote testimony can seem like a one-on-one conversation between the witness and the lawyer. Witnesses may be tempted to say too much, forgetting the standard admonition to answer only the question that was asked and not to volunteer information.
Preparing the Expert for Remote Testimony
Experts also noted that in-person depositions are usually accompanied by in-person meetings with the lawyer who prepares them to testify. Experts found that meeting in person results in more thorough preparation. A mock cross-examination is more likely to build confidence when it is conducted in person. Preparing in person also contributes to strong communication and reduces the risk that the expert and the lawyer who retained the expert will not be on the same page when the expert testifies.
The report suggests that experts and lawyers both benefit from meeting in person to prepare the expert’s testimony. Even when a hearing or deposition is conducted remotely, it may be sensible to meet in person when the time comes to prepare the expert to testify.
Psychologists have identified “Zoom fatigue” as a potential drawback of remote proceedings. Staring at a screen is less engaging than watching witnesses testify in person. An arbitrator’s mind might start to wander after hours of watching an expert give less-than-scintillating testimony about technical issues. Lawyers should keep “zoom fatigue” in mind by breaking up lengthy hearing testimony into a series of shorter answers to help keep the judge or arbitrator engaged.
Impact on Outcomes
Study participants were divided in their opinion about the impact of remote testimony on hearing outcomes. Some believed that the hearing environment has an impact on the decision-making process. Most participants believed that the professionalism of judges, lawyers, and expert witnesses overcomes the disadvantages of remote testimony.
Expert witnesses did not view remote testimony as changing the nature of their testimony or the way that testimony would be perceived. Experts believed they had adapted to remote testimony with ease.
The key takeaway from the BRG report is that expert witnesses benefit from in-person preparation even when they testify remotely. Lawyers may have a better outcome when they meet with an expert witness in person to prepare the expert’s testimony.