Live-Stream Expert Testimony — The “New Normal”

COVID-19 has not stopped us from calling expert witnesses at trial, but in some cases, it has changed how we do it. Is your practice prepared if these changes become permanent?

Our prediction is that many of the changes are here to stay. For example, consider how useful remote technology has proven to be in trial.

In one of our pandemic-era trials, an expert witness was unable to personally appear to testify because of COVID-19. Utilizing videoconferencing technology (Zoom), we were able to live-stream this expert’s testimony, as permitted by Maryland Rules 2-804 and 2-805. In another recent trial, a different expert’s flight was cancelled and he was unable to get to the courthouse in time. Although unexpected, this didn’t stop him from testifying — Zoom to the rescue. In each instance, the experts’ Zoom testimony was well-received by the jury.

Pandemic-related restrictions have forced many — lawyers and the Court alike — to become increasingly familiar with these live-streaming technologies. These technologies allowed the legal system to operate through the pandemic. They also revealed some unanticipated benefits, such as cost reduction (travel time, expert accommodations, etc.) and more flexibility with scheduling. As a result of the increased familiarity with videoconferencing, as well as the benefits it provides, we anticipate live-streaming expert witnesses will be more readily accepted — even after the pandemic.

Considering this new trend, we offer the following recommendations to ensure the use of remote live-streamed expert witnesses goes seamlessly:

  • Obtain an agreement with opposing counsel that no party will object to calling remote live-streamed witnesses;
  • Notify the Court — either directly or in writing — of this agreement and request the Court’s permission; and
  • Work out the logistics with the courtroom video technician in advance of trial.
Every courtroom is different, but if you are able to manage the logistics, you can make remote live-streamed witness testimony remarkably effective.

Bottom Line: Live-streamed expert testimony at trial is going to be the “new normal.” Experts and lawyers must formulate a plan well in advance of trial for presenting evidence to a jury in this fashion.

Waranch & Brown will continue to stay at the cutting edge of the industry to assist your upcoming case or claim, and help maintain the long-term viability of your organization. Don’t hesitate to contact us with any questions.

This information does not constitute legal advice, and is not a substitute for counsel directed at your specific situation.

Anthony Breschi

Anthony Breschi

Anthony (Tony) Breschi is an AV-rated trial attorney and partner at Waranch & Brown, LLC. His practice focuses primarily on the defense of physicians and hospitals in medical malpractice cases. He has tried numerous medical malpractice cases at the trial level of Maryland and Federal Courts. He is also a member of the Bar of the District of Columbia and has tried cases in the Superior Court and the U.S. District Court for the District of Columbia. He has argued appeals before the Maryland Court of Appeals, Maryland Court of Special Appeals and in the U.S. Court of Appeals for the Fourth Circuit. Mr. Breschi has also represented physicians before the Maryland Board of Physicians and in credentialing matters.
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