June 2014 Bar Bulletin
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June 2014 Bar Bulletin

Skype Testimony: New Opportunities for Litigation Technology

By Laura Carlsen and Jamie Walker


In a world awash with seemingly endless technological developments, it was only a matter of time before these developments penetrated the longstanding traditions of our courtrooms.

Every day families in different countries (even our military service members separated from family as a result of deployment) are able to talk to and see each other in real time through the use of Skype and other similar videoconferencing applications. Recently, our own Washington Court of Appeals endorsed the use of Skype in trial, not only to take the testimony of supporting witnesses, but also to allow a party to attend and testify at his or her own trial. This marks an important step forward in how we can use technology to better our litigation practices.

Traditionally witnesses were required to testify in person with the understanding that it was of paramount importance when assessing their credibility and demeanor. Before 2010, Washington's Civil Rule 43(a) specifically required testimony of all witnesses to be "taken orally in open court," with only limited exceptions to the rule when the court "otherwise directed" or when it was specifically allowed by another rule or statute.

At first glance, it seemed that this might have given trial courts the unfettered ability to direct "otherwise," but even that exception was narrowly construed so as to allow telephonic testimony only when all parties consented to it.1 This was true even for a witness whose advanced age and severe medical conditions made it extremely difficult to appear in court.2

In 2010, CR 43(a) was amended to mimic its federal counterpart (FRCP 43) and include a second sentence allowing testimony by "contemporaneous transmission from a different location" given a showing of "good cause in compelling circumstances and with appropriate safeguards."

Until this year, however, no Washington appellate court had interpreted this amended rule or provided any guidelines for determining when compelling circumstances existed that would warrant the use of "contemporaneous transmission from a different location." Instead, we were required to seek that guidance from federal cases interpreting FRCP 43, many of which endorsed the use of testimony by videoconferencing when, for example: a witness in another country was unable to secure a visa to the United States;3 there were 20 witnesses from many different locations;4 and the witnesses lived on the other side of the country.5 The few federal cases that rejected the use of videoconferencing involved situations where the witness was simply "unwilling" to go to the United States.6

While many of our local courts, including drug and criminal courts, already were equipped with and using videoconferencing on a routine basis, the use in civil courts had not yet become as widespread. This was likely due not only to the lack of courtroom equipment, but also the continuing development and expansion of the technology itself.

It has only been in recent years that high-quality, low-cost, reliable videoconferencing technology has become widely available. This is evident in family law cases alone, where long-distance parents no longer rely exclusively on the telephone for contact between visits, but rather include Skype or FaceTime provisions in their parenting plans so kids can see and hear their parents no matter how far away they are.

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