Expert Witness Depositions in the Time of COVID-19

Today, expert witnesses may find themselves at a deposition, seated alone at their own desk, with a webcam and microphone, taking their oath remotely. Or have their deposition forgone entirely. Traditional methods and strategies may need some adjustment.

Surging numbers of coronavirus-related lawsuits the spectrum — as many from insurance and real estate law as med-legal — are fueling a demand for expert witnesses from all specialties, but traditional depositions are being replaced by remote telephonic and videoconferencing, or forgone.

Foregone depositions may give some experts a sense of relief, especially when facing combative and aggressive attorneys, but depositions can be as advantageous to experts as opposing counsel. Preparing to be deposed, experts normally return to their original reports, sometimes written long before, and on fresh review discover inaccuracies, less-than-stellar analyses or omissions that they can attempt to cure during the deposition, or in supplemental reports. Errors and omissions discovered at trial are far more difficult to correct.

Without being deposed, even for those with total confidence in their reports, expert witnesses miss the opportunity to discover the opposing counsel's skill level, subject matter knowledge and overall comfort level deposing them. Depositions can be used by experts to take all the weaknesses of the opposing attorney and develop plausible explanations, add new facts or revise theories and opinions to cover any potential weaknesses discovered at deposition. As well, when depositions are foregone, experts lose the opportunity to learn the opposing counsel's strategy — the theories, approaches and lines of inquiry — that may be used at trial to attack their reports, or themselves.

Rather than dispose of the deposition, many trial attorneys are pushing for remote telephonic and videoconferencing depositions. While some other attorneys are pushing back and cancelling depositions, courts in a number of states have weighed in favor of them to keep cases moving forward.

Some trial attorneys argue that it is high time the legal system moves into the 21st century and adopt remote videoconference depositions as a standard, even remote videoconference court hearings.

While the U.S. Justice Department has asked Congress to expand opportunities to use videoconferencing for some proceedings due to coronavirus, like arraignments, more sweeping proposals to use video technologies in the courts have been met with skepticism. The Justice Department's fall back position has been to request that the requirements of the Speedy Trial Act be eased and that the statute of limitations and deadlines for civil and criminal procedures be paused — ideas that have met with even greater skepticism in the Congress.

That said, courts in many jurisdictions are adopting rules for remote video depositions in civil cases to avoid delays. Both Texas and Florida have moved to temporarily relax requirements that the court reporter and deposition witness be in the same physical location, including civil and criminal matters. Some courts have issued rules that depositions may not be cancelled or delayed because a remote videoconference format has been selected. 

Many experts have experienced telephonic or videoconference depositions, but historically they have been accompanied by attorneys, clerks, opposing expert witnesses and of course court reporters or notaries. Now, experts may be deposed alone at their own desk.

Even though videoconferencing systems do not allow for the natural interaction of face-to-face meetings, they can offer advantages to those being deposed. Experts may receive off-video, real-time cues from their attorney or others through side chats that they might not get in a traditional deposition, and any fidgeting or other non-verbal clues may not be caught on camera, but questioning attorneys have their own advantages, being able to mute microphones and consult with co-counsels, clients and experts to hone their questions.

Of course, using videoconferencing systems for depositions requires some knowledge and caution. Hosts of the popular Zoom system can accidentally save private chats to the cloud, allowing all participants to see the chats later on. Zoom is also facing a class action lawsuit for sharing user data with Facebook, dubious claims of end-to-end encryption and issues with uninvited guests turning up. And Zoom is not the only videoconferencing system with glitches; users beware.

When this pandemic abates, the likelihood is that remote telephonic and videoconferencing depositions will continue to be more common than in the past as courts push to keep cases on track, clients remain eager to reduce litigation expenses and attorneys become more comfortable with remote technologies.

Being deposed alone with a webcam and a microphone may become the norm.