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March 01, 2021 Practice Points

Preparing for Virtual Expert Testimony: Like Herding Kittens?

Assuming that your experts are familiar with the rules that govern their testimony and the tech logistics of virtual meetings can lead to disaster.

By J. Bradley Sargent

In the COVID-19 era of virtual depositions, hearings, and trials, recorded virtual testimony has reached urban legend status. Recently, a video-recorded session from Texas Judicial District 394 went viral. An attorney had somehow applied a video filter that made him appear as a live kitten while speaking to the court, complete with corresponding eye and mouth movement. In the video, the patient judge tries to help the attorney navigate the video filter function as the attorney, with growing desperation and exasperation in his voice, says, “I’m here live. . . . I am not a cat.” The judge’s response? “I can see that.”

The kitten used in the filter was certainly adorable—some may even consider it heartrending—but it was definitely not the image that the attorney wanted to present to the court. Do not let this happen to your experts. Assuming that your experts are familiar with the rules that govern their testimony and the tech logistics of virtual meetings can lead to disaster—live on video. The best way to avoid the kitten filter is to practice, practice, practice.

Review the virtual terrain. First, identify the recording medium that the court or court reporter will be using. Familiarity with Zoom does not always translate to Teams, Webex, or any other platform. Next, insist that your experts share their audio and video capabilities with you prior to testimony. Review their video background—simple is best. The fewer distractions, the more the focus will be on the individual testifying. This includes physical items on a desk as well as electronic data on a second or third monitor. Experts have been captured on video using their off-screen monitor to access the internet for answers to questions, read and respond to email, or instant message with retaining counsel. These incidents are recorded for posterity and can be result in long-term damage to the expert’s testifying career.

Your experts may be fully prepared to testify from the comfort of their home / home office. However, they may have a smart home device such as Amazon Echo or Google Home that is actively listening to and potentially recording spoken words. They may also encounter tech impediments that can impact the virtual testimony, such as bandwidth and processing limitations. Consider the timing for exchanging electronic exhibits prior to the testimony. Trying to access large files in real time can consume valuable time or completely shut down an expert’s virtual testimony. Anticipating these obstacles and providing the smoothest path for your experts will mitigate the logistical challenges to virtual testimony. Whether your experts stay on that path, though, is an entirely different set of challenges!

J. Bradley Sargent, CPA/CFF, CFE, CFS, CCA, FABFA, is the founder and managing member of The Sargent Consulting Group, LLC, in Chicago, Illinois.

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