Defense Counsel Journal

Editor's Page - Volume 89, Number 1

Volume 89, No. 1

April 29, 2022

Parkerson_Christopher_2020_sized Christopher B. Parkerson

Christopher B. Parkerson

Christopher is the Defense Counsel Journal Editor for 2020-2022. He is a Member of Campbell Conroy & O’Neil, P.C. and serves on its Board of Directors. Christopher has extensive trial experience representing national and international corporations in the defense of catastrophic product liability, commercial, intellectual property, professional liability, and negligence matters throughout the United States. Christopher’s jury trial experience, combined with his work ethic and approach to the lawyer-client relationship, has allowed him to successfully guide clients through all aspects of litigation from Lead Trial Counsel to guidance on such issues as pre-suit ADR, witness preparation, and mock trials.

The news on the COVID-19 front has not been great over the past few months and courts around the country are once again postponing jury trials and going back to remote hearings and conferences. This is a prudent and necessary course of action because it protects the health and safety of court personnel, lawyers, parties, and jurors. While the safeguards being put in place are important, they must be as temporary as possible to accomplish the goals of safety while still allowing access to justice as well as the formal setting of appearing in a courtroom in front of a judge. Appearances in court via Zoom or Teams is fine for a temporary band-aid while science and health policy catch up to some of the unknowns of COVID-19, but there needs to be some urgency in getting back to business as usual in courthouses- even if that business requires additional safeguards and procedures. 

We have all seen the viral videos of lawyers and witnesses making errors during remote hearings, conferences, or depositions. These are funny, but the laughs mask a problem in making sure courts do their job of getting to the truth. There are almost always issues with technology: a participant is on mute, a participant’s computer reboots during the hearing, or there is significant lag such that a participant cannot keep up with the back and forth of a hearing. These are relatively minor issues. A more serious issue is one I confront regularly where a witness testifying via iPhone is being asked to identify elements on a photograph and they either cannot see the photograph or don’t know how to zoom in such that details of the photograph can be closely examined. This and similar issues like interruptions of phone calls, disruptions from others in the same room, and the inability to properly see or hear a witness or other lawyer makes a lawyer’s job of assessing the quality of a witness or testimony more difficult than simply looking across a conference room table. Although I have not seen data on this issue, I believe a witness taking an oath over Zoom and testifying from his or her couch doesn’t take a deposition as seriously as someone asked to appear in a courtroom or conference room. I also believe that a party appearing in Court in front of a Judge has more respect for the procedure than someone sitting behind the wheel of their car watching proceedings on a laptop. 

Why does this matter? Of course, there are constitutional issues that are critical to the administration of justice from both the standpoint of a speedy trial and due process. The other issue is the process and formality of going to court and being in front of a judge. This cannot be forfeited to technology or convenience. My prediction is that 2022 will not be the end of COVID-19 and even if it were, this will not be the end of issues like COVID where health and safety will become a factor in whether people can appear live together. I hope I look at this note in three years and I was wrong in my predictions, but in case I am not, I think courts and bar associations need to be thinking of alternatives to remote proceedings. Things like testing, additional ventilation and circulation in court rooms, rooms that allow for proper spacing and other precautions are much better and allow for a more effective use of the system. The use of remote proceedings should only be reserved for exceptional circumstances once these new procedures are identified and implemented.   

This edition of the DCJ contains three outstanding articles. “Taking a ‘Hard Look’ at Expert Witness Testimony under Rule 702” by Geoffrey Drake, Eva Canaan, TaCara Harris, and Luka Bosso is an excellent examination of the rules and laws governing expert witness testimony. It analyzes current trends in Court’s scrutiny of expert testimony and provides thoughts as to what the future may hold in this critical area of litigation. “Lessons from a Year in Crisis: Do’s and Don’ts of Crisis Management” by Kaitlyn E. Stone, Michael C. Zogby, and Claudia V. Garcia is a well-researched review of current events impacting both clients and law firms and discusses approaches to make sure that these events are managed in a way to deliver the best results possible. There is also a wonderful article about Justice Sandra Day O’Connor’s impact on arbitration by Mitchell L. Lathrop, Daniela Karollus-Bruner, and Kevin F. Truxillo. 

As always, I encourage you to listen to the quarterly podcast so that you can get caught up on DCJ highlights. We are currently producing a podcast with Chad Hutchinson and Stephen Huwe on use of in-house witnesses as experts that provides some very useful and interesting information. Please visit the IADC webpage and check it out.