Since 2020, courts and attorneys have struggled and experimented in a number of interesting ways to figure out how to return to civil trials. One new development that emerged is testimony from live witnesses by remote video conferencing.
In May 2020, the Illinois Supreme Court specifically endorsed use of this new technology in civil trials in Illinois Supreme Court Rule 45 and 241. We recently implemented this new technology in a 2021 medical malpractice case and found that it is more cost effective, makes witness scheduling and trial preparation easier, and is more effective than pre-recorded evidence depositions. Live remote witnesses via video conferencing is a great tool for any Illinois trial attorney while Covid-19 is still around and hopefully long after it is gone too.
Nuts & Bolts: Legal Basis
Two years into the pandemic, hesitancy from opposing counsel and, more importantly, judges to the use of remote conferencing systems has disappeared. A stipulation from the parties should be sufficient for the trial judge to permit witnesses by remote video conferencing. In our 2021 trial, both sides had multiple out of state witnesses and agreed to remote live witnesses. The judge had no qualms with the request either.
Should opposing counsel object or the judge request authority, there are a few things you can cite. Illinois Rule of Evidence 611 covers the “mode and and order of interrogation and presentation.” Ill. R. Evid. 611. Rule 611 (a) states: “The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Id.
In 2020, the Illinois Supreme Court amended its rules in response to Covid-19 to specifically address the use of remote conferencing systems. The new Illinois Supreme Court Rule 45 states: “The court may, upon request or on its own order, allow a case participant to participate in a civil or criminal matter remotely, including by telephone or video conference. Ill. Sup. Ct. R. 45. The new Illinois Supreme Court Rule 241 specifically covers remote video testimony at trial:
“The court may, upon request or on its own order, for good cause shown and upon appropriate safeguards, allow a case participant to testify or otherwise participate in a civil trial or evidentiary hearing by video conferencing from a remote location. Where the court or case participant does not have video conference services available, the court may consider the presentation of the testimony by telephone conference in compelling circumstances with good cause shown and upon appropriate safeguards. The court may further direct which party shall pay the cost, if any, associated with the remote conference and shall take whatever action is necessary to ensure that the cost of remote participation is not a barrier to access to the courts.” Ill. Sup. Ct. R. 241.
You can also cite the Illinois Supreme Court’s “Illinois Supreme Court Policy on Remote Court Appearances in Civil Proceedings.” Under the Supreme Court’s new policy: “[t]he use of Video Conferences for testimony in civil trials and evidentiary hearings may be allowed for good cause and upon appropriate safeguards under Rule 241 (and Telephone Conferences may be allowed in compelling circumstances for testimony). Courts have wide discretion under both rules to allow Remote Court Appearances.”
Be sure to check your local circuit court’s Covid-19 related general orders because there may an order specifically endorsing the use of remote conferencing in some manner. For example, the 19th Circuit Court in Lake County published a set of rules called “Protocol for Remote Civil Bench Trials and Arbitration Hearings.”
Nuts & Bolts: What You Need
Putting on a live witness remotely takes a lot less technology and technological know-how than you think. Do not be intimidated to try it.
The only technology required is:
1) Wi-Fi access,
2) a monitor,
3) a remote conferencing platform,
4) a computer, smartphone or other device for you and the witness, and
5) a remote screen mirroring device.
Many courts are now fully equipped with remote conferencing systems and have been using them for their status conferences daily. Many counties have put federal and state pandemic relief funds to good use by modernizing one or more of their courtrooms to accommodate remote video conferencing systems. In our 2021 trial, all we needed to do was provide our witnesses with the court’s video conferencing log in and give the witness the time to log in.
If your courtroom does not have everything you need, the amount of technology you will have to bring is minimal. You most likely already have everything you need.
First, make sure you have Wi-Fi access for yourself. Most court clerks will warn you that it is not worth the risk of relying on the courthouse’s wifi network. Many of our phones and tablets act as Wi-Fi hotspots. Or you can purchase a mobile hot-spot for under $100.
You will need to have screen mirroring hardware that enables screen sharing with your device and a monitor. Many attorneys already have one of these devices in their home. This could be an Apple TV, Google Chromecast or any other screen mirroring device. The screen mirroring hardware can connect to the monitor in the court and your computer wirelessly. Be sure to practice with it at your office before the witness goes on.
There are several free remote conferencing platforms available: Zoom, Google Meet/Google Hangout, Microsoft Teams or Verizon BlueJeans. If you have not gotten comfortable with one of these platforms, download it before trial and test it out. More importantly, if your witness does not have experience with one of these platforms, make sure you practice with your witness either during your preparation meeting or the evening before. Helping your witness gain a comfort level using the technology is crucial to his or her ability to focus on the testimony itself.
You need a computer in the courtroom for yourself to set up the meeting. The witness will need a device with internet access to log into your meeting. A great thing about remote conferencing is that witnesses can testify with just their smart phones or tablet device if they do not have computer access. With that said, we had a witness use a phone and it was a little more awkward than the witnesses sitting in front of a computer. I would recommend telling your witnesses to testify from a computer in a place where they have reliable internet access and will not be disturbed. Make sure to remind your witness to have their device plugged in. Remote conferencing software can drain a battery before you are done with your questioning.
Pros & Cons: Cost Benefits
Avoiding the costs of travel, airfare, and hotels for out of town experts is incredible whether you are a plaintiff wanting to reduce expenses to maximize recovery for your client or a defense attorney looking to impress an insurance analyst by saving them tens of thousands of dollars. Apart from travel costs, the expert does not have to clear (and you do not have to pay for) a full day for testifying and 1-2 days for traveling. Instead, the expert bills you just for the actual time on the stand.
Should you opt to present witnesses remotely, remember that proper lighting and background are part of presenting their testimony. When you prepare the witness, share tips for simple backgrounds that put the focus on the witness, not the space behind them.
Pro & Cons: Flexibility
There is nothing that gives a trial attorney more heartache than trying to make sure his or her expert witness will be able to take the stand on the day and time scheduled – particularly when that expert must be scheduled months in advance. Everyone has to do their best to guess how long jury selection will last, how long opposing counsel will take, whether witnesses are on vacation or unavailable, and whether or not the trial will actually start on the expected date.
What happens most often is you lock in your experts, who have the toughest schedules, and build your witness order around that. You almost never get to actually put your witnesses on in the ideal order that makes the most sense in telling the story of your case. Presenting live witnesses remotely reduces these scheduling headaches and allows you to present your case in the logical order of your choosing.
What is even worse is sometimes litigators have to abandon witnesses or take a last-minute evidence deposition, because they cannot fit the witness into the schedule. At best, this situation results in testimony you wanted to get to the jury coming from a less effective witness or via a less effective means. At worst, the loss of a witness can result in voluntary dismissal, directed verdict or a negative verdict.
In our case in 2021, we had to suspend the trial for several days due to a Covid exposure. We had two out of state experts scheduled to go on those days. Fortunately, the experts were willing to testify the following week, but they did not have a free full day for travel and testimony. Instead of losing a standard of care expert and our causation expert and having to request a mistrial, we were able to fit it into their schedules and put them on remotely.
As another example, we had a 213(f)(2) witness scheduled the first day of trial as the afternoon witness. After that day she was out of town for the rest of the trial. When opening statements and the attorneys’ examination of the first witness went longer than expected, it was clear the 213(f)(2) witness would not make the stand that day. The treater’s testimony was only 15-30 minutes, but it was important. Thankfully, we did not have to abandon the witness. The witness appeared remotely the next day while on vacation using a cell phone.
Pros & Cons: Live Witnesses Are More Engaging Than Recorded Evidence Depositions
We have all experienced jurors losing focus or struggling to stay awake during recorded evidence depositions. The worst part of this is that due to the scheduling issues discussed above, it is usually our most important expert witnesses who appear in this manner. You want your jurors fully engaged during your most important witnesses.
Our trial was interesting because witnesses testified via all three modes: 1) live in-person, 2) recorded evidence deposition and 3) live remote. By watching the jurors, we could see that the jurors paid more attention and were more attentive to the live, remote witnesses than the recorded evidence depositions. The opportunity for follow-up questions in real time also enhanced juror engagement.
Having the witness live in-person with the jurors was certainly more effective than having the jurors stare at a screen. But there were some advantages of remote witnesses compared to in person witnesses. Many courts have different Covid safety rules regarding masking. At our trial, witnesses were required to either wear a mask or a face shield. When the witnesses are remote they obviously do not have to wear masks. Really good witnesses can be just as effective with how they say something as what they say. This is equally true for poor witnesses. When you are effectively crossing an expert, you want the jury to see it on the expert’s face and not allow the expert to hide behind a mask.
Remote witnesses come with their problems. Internet glitches and connection disruptions occurred during our trial. When this happened, the court reporter read back the question and the answer until where the disruption occurred and the witness continued their answer. We also had one witness who could not figure out how to work the system and was continued to the next day. These disruptions were very minor, and the jurors seemed unbothered.
Pros & Cons: Live Witnesses Are More Effective Than Recorded Evidence Depositions
Evidence depositions are taken before the trial, sometimes months or years before the trial. Some issues that seem important at the time of an evidence deposition may no longer be as important or even at issue after motions in limine and testimony of other live witnesses. You can find yourself in a situation where the pre-recorded witness spends an hour on an issue that is no longer important and only two questions on the areas that have become primary points at trial. You may be frustrated that you are not able to bring out or counter a certain issue with your pre-recorded witness that you could have if they were live.
Moreover, no evidence deposition ever goes to the jury without being redacted and edited to some extent. Motions in limine and lunch-hour or after-hour hearings on objections may result in the court gutting large portions of testimony. The same objections may be raised with a live witness in real time, but your opponent has not had the benefit of preparing a written motion armed with case law and hours of legal research as they would with a motion in limine. Also, there are certain objections that attorneys are eager to make in pre-trial motions that they are more wary to make in front of the jury for fear of looking like they are hiding something or offending the jurors.
Conclusion
Covid-19 brought enormous disruptions to our legal system, but it also brought with it new opportunities to improve our practices and enhance our flexibility moving forward. Remote conferencing is likely here to stay. Do not be afraid to be an early adopter of this new technology as you get back in front of juries.