Just over 20 years ago the Pennsylvania Supreme Court embarked on an experiment when it passed a rule of civil procedure permitting trial courts to allow testimony by telephone audiovisual or other electronic means “with court approval.”

The rule really came out of nowhere. Often there is a movement by the bar for a rule such as this. But that was not the case.  There is a Supreme Court Rules Committee that helps to draft rule changes and often they will publish a comment explaining why a modification or new rule like this was proposed for adoption.  Telephone testimony has also been adopted in the context of unemployment compensation but there the rules are much more explicit as to how and when this procedure may be substituted for live testimony.

This author has had occasion to work with the rule. Typically the controversy is over two matters. (1)  How and when court approval needs to be secure and (2) how trial exhibits, which are typically presented to the witness while testifying are managed when the witness is not in the courtroom.

I recently witnessed a trial in which I was merely the spectator waiting for my own hearing. It was a contempt hearing before an experienced common pleas judge.  The judge had advance notice of the fact that the Respondent was in another state and granted the right to appear by telephone subject to the requirement that all documents which might come into evidence be exchanged several days in advance.

The controversy related to an order directing the parties to sell their home and divide the proceeds. The house was in Respondent’s name alone and she sold the house and appropriated the proceeds.  When challenged about the sum due, she mailed her former spouse a check for 35% of the net proceeds based on the fact that she had moving costs to pay. The court order said nothing about how the moving costs were to be addressed.  Petitioner filed to enforce.  After a court order and an appeal to the Superior Court as well as a petition for a supersedeas to stay the order to pay 50%, the Petitioner sued for contempt.  The Respondent cited health reasons to secure an order for her testimony to be taken by telephone.

Chester County, Pennsylvania has a modern court house with state of the art telecommunications. So it was easy for the judge to boot up the system and make the call.  But the system appears to require the judge to initiate the call so that instantly, it is the trial judge who appears as supplicant as she identified herself to the Respondent and informed her of the status of the proceeding and who was listening.  The Respondent announced that this arrangement was fine with her, as if the trial judge was asking the Respondent’s permission to proceed by phone.

The other feature instantly made plain was that with her voice being broadcast through a number of speakers in the Courtroom was that the Respondent’s voice dominated the proceeding based on the volume alone. The Respondent’s demeanor was not the problem here but the amplification system transmitted through the phone made her voice much louder than that of the attorneys or the judge.

Less apparent was how witnesses not in the courtroom miss what is going on. They also miss the opportunity to have their attorney whisper to them that it is not time to blurt out that the other side is lying or “That never happened.”  They may be instructed (as this witness was) that the sequence would be that parties would each have a turn to speak, but that doesn’t really register when you are giving testimony from a chair in your living room somewhere in Nevada before a dozen or more people you have never met.  For nearly three centuries the administration of a testimonial oath has been a ritual in Pennsylvania Courts.  People in the courtrooms raise a hand and place another on a Bible.  Telephone witnesses typically receives the perfunctory instruction: “You know your testimony is under oath.”

The most glaring problem is that it is well-nigh impossible to manage a witness to give telephone testimony. Certainly we prepare witnesses to testify by calling them in advance on the telephone all the time.  But once they set foot in a Courtroom, even poor witnesses understand that a courtroom is not a bar or even a lawyer’s office.  Even in an age when courtroom ceremony is dismissed as antiquated, a judge’s arrival is typically announced and greeted by all present rising to their feet.  The business of the court is usually announced.

The telephone witness gets none of that ceremony and, as I watched today, it showed. The Respondent was not openly rude.  She was clearly “ignorant” of the purpose and flow of the proceeding.  The judge had to admonish her that it was not her turn to talk.  But the highlight or, to my mind, the lowlight, was how the witness thought she controlled the proceedings.  Her legal position was that she had tendered a check for 70% of the amount due and that if the Petitioner had failed to cash the check that was Petitioner’s problem because the money she received from selling the house was gone now.  At one point she blurted out that she wanted all of this nonsense resolved as well and that she would give Petitioner one-third of the amount due under the agreement.  When asked how much money she had to comply with the order she said she had in her accounts 2% of the amount due.  When asked how she could offer one third of the amount due when her cash deposits were 1/16 of her settlement offer she groused. “I have means.”  On cross examination she openly acknowledged having put down most of the money to buy her mother’s house (where she resided) but then added that she was probably going to move.

Every trial lawyer has at least one or two stories about witnesses who are openly hostile to everyone in the courtroom. Those people are out there.  I recall watching a witness tell a very forceful judge that the judge was well advised to think twice before suggesting the witness reconsider what he had said under oath.  But today’s Respondent was not rude.  She just had no idea where she was or what she was doing.  The easy route is to blame her lawyer. But to my mind, the real culprit is a technology that allows people to “phone in” their legal disputes in the same way they would order a pizza.  Having said that, there was sound reason for the Respondent to not travel across the continent to appear in Pennsylvania.  But I suspect that had she been told her testimony would be taken via Skype or video graphed in Clark County Nevada’s Court House both her words and her demeanor would have been more circumspect. In the end, I felt badly for the judicial system and especially for the Petitioner, who had put on a suit and tie and driven more than an hour to personally appear so that his ex-spouse could boom out from her Nevada living room that her noncompliance with their agreement was his “too bad” since she had offered him a settlement and he stupidly insisted on his contractual rights.  In the end, the Petitioner won but the process itself was a loss.  Telephone testimony threatens to demean a system it was intended to help.

 

Psst, can I stop whispering in your ear and just email you instead? Its work-product.
Psst, can I stop whispering in your ear and just email you instead? Its protected as work-product.

Many of my cases involve the use of expert witnesses; individuals hired to review and testify about a specific issue or topic. Usually they are financial experts whose job is value a particular asset such as a business, while other experts could be psychologists conducting a custody evaluation. In other areas of law, there are individuals qualified as experts in virtually every conceivable topic and issue.  Whatever the underlying issue of a case, it is reasonable to assume there is an expert out there prepared to testify about it.

Consequently, communication between an attorney and the expert working on the case is critical and often encompasses trial strategy. It is vitally important that the expert and the attorney can openly and easily communicate about the case.  Not too long ago, however, this relationship and communication became subject to discovery in the case of Barrick et al. v. Holy Spirit Hospital of the Sisters of the Christian Charity et al.  At the time, the trial court ruled that expert testimony was subject to Pennsylvania’s liberal discovery rules and should be turned over to the other side. This was a radical departure from commonly held beliefs and practices protecting this communication and created significant consternation among attorneys.

The Superior Court heard the case in 2011 and overruled the trial court’s decision and barred the production of communication between a surgeon serving as an expert and the plaintiff’s attorney in a personal injury case. Attorneys across the state breathed a sigh of relief; they could actually email their experts again.

Recently, any ambiguity was mostly removed when the Pennsylvania Supreme Court upheld the Superior Court’s decision through a split, 3-3 decision (an evenly divided court results in affirmation of the Superior Court decision). I say mostly because it was a 3-3 split, but in affirming the decision, three justices created a bright-line rule denying the production of expert/attorney communication.

The argument that communications with experts did not fall within the work-product doctrine of confidentiality and were critical for counsel to the cross-examination and critiquing by counsel was not accepted by the Court. The Court felt that by having the opportunity to cross-examine the expert, there was sufficient opportunity to attack his/her opinion without having to divulge communications between the expert and attorney.

This is an important decision in Pennsylvania and affects every litigator, regardless of area of expertise and will allow for experts and attorneys to freely exchange ideas without fear that they will turn into trial exhibits.

Photo Credit: www.health.com

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty