Serving as an expert witness since COVID-19: Tips for virtual litigation

Specialists in certain fields may find themselves called upon to provide expert witness in legal suits, mediation or arbitration efforts.

Expert witnesses are asked to provide an unbiased, professional opinion — one supported by facts. As a witness, you may be asked to provide testimony through affidavit, deposition or courtroom testimony, explaining facts in a way that nonexperts can understand. 

Since the advent of COVID-19, the litigation experience has changed. Here’s how pandemic-era changes might apply to your expert witness experience, now and into the future:

Increase in alternative dispute resolution

Disputing parties are turning to arbitration or mediation for resolution, as it can be difficult to get their day in court. 

There’s been a delay in time to trial for several reasons. Many courts suspended all civil jury trials for months, creating significant backlogs. Additionally, the pandemic has caused discovery to drag. Some attorneys and their clients are still out of the office, making the collection and production of document discovery difficult. 

Faced with indefinite delays, businesses and litigators are looking for alternative ways to reach resolution. For example, some are using a compressed form of nonbinding arbitration using basic discovery to vet each side’s strengths and weaknesses before determining next steps.

Virtual mediation is more pervasive

In line with the uptick in mediation requests, litigants also turned to virtual mediation. Before COVID-19, it was customary for legal counsel and expert witnesses to meet in person at a mediator’s office or other neutral location. To address health and safety concerns during the pandemic, these meetings shifted to remote conferencing technology.

The result was greater convenience and cost savings, thanks to eliminating travel demands. Scheduling mediations was often easier, too. Now that remote meetings are more commonplace, mediators, attorneys and litigants alike are likely to continue the practice.

Virtual mediation is not without downsides, however. Participants lose the value of in-person interactions. Mediation sessions could drag out without a hard deadline (e.g., a flight to catch) for the parties to end negotiations. Worse, some practitioners could attempt to frustrate opposing counsel by claiming technical difficulties, muting clients during a pending question or hitting the “leave meeting” button.

Remote depositions and oral arguments

Courts have recognized pandemic conditions as a legitimate reason to hold depositions remotely. Many are also allowing virtual testimony.  

Again, these virtual arrangements eliminate travel time and cost. Downsides include potential complications in sharing exhibits and a reduced ability to read credibility through in-person eye contact or body language. 

Tips to keep in mind when participating in a virtual deposition or oral arguments:

• Practice: Test your connectivity during a practice session. Have support lined up or backup options (e.g., a hardline into your internet connection, hotspot your phone) in case you have issues during the hearing.
• Present a professional setting: Find a location with minimal distractions. Set yourself up so that the background is simple (e.g., a blank wall or an organized office setting).
• Dress the part: Proper courtroom attire should be worn.
• Be considerate: Behave as if you are in the courtroom. Do not look at your phone, eat, talk with others, or be the cause of other distractions. Don’t interrupt when others are speaking — talk over is especially difficult to hear in virtual settings.
• Eliminate disruptions: Put your phone on silent. If you have family members at home, warn them that you are not to be interrupted. Post a clear “do not disturb” sign on your door and lock it, if possible. Move pets to another room where they are unable to cause disruptions.
• Be calm and patient: Remote conferencing technology is not perfect, and there will be hiccups. Expect delays due to connectivity issues and respect that there will still be learning curves.  

In courts where remote arguments have worked well, they will likely continue to offer this option if parties agree. Virtual testimony will be here for a while, and both attorneys and experts need to prepare differently for trial.

Ultimately, use of adaptations will come down to cost-benefit decisions. Many of the changes may be here to stay.

Litigation support from Wipfli

Wipfli assists in various areas such as business valuations for divorce cases and shareholder disputes, investigations of theft or fraud, breach of contract, lost profit issues and more. We provide an independent and objective opinion, working seamlessly alongside attorneys, consultants, specialists and other parties. 

We offer a comprehensive range of services, from prelitigation strategy up to, and including, expert witness testimony at trial. For more information, see Wipfli litigation support services or contact a Wipfli representative.