Pros & Cons of oral deposition, video testimony or telephone testimony in an arbitration

Asked about 2 years ago - San Diego, CA

Respondent's witness is perhaps giving an excuse to attend the hearing and want to delay the hearing by many months.

If live witness is not possible, what alternatives would help the claimant (without delaying)? Pros & Cons pls

Attorney answers (4)

  1. Daniel Milton Yamshon

    Contributor Level 9

    3

    Lawyers agree

    Answered . It is quite common for testimony to be provided by speaker phone. I have allowed this many times and occasionally ordered it in arbitrations. There may be many valid reasons such as illness of a witness, distance, and so on. Having remote testimony can also save the parties a great deal of money in travel expenses and so on. The enhancement provided by video conferencing is not that great, in my experience unless you have an expert witness testifying from a remote location and that witness has graphs or other demonstrable evidence. I expect to see more internet video use as time goes by as it is much cheaper than video conferencing, particularly if the arbitration is taking place in a location that does not have built in video conferencing, or if the witness is not in a location with video conferencing. Either the witness or the equipment and a technician has to travel in those cases.

    If you are using an internet video protocol, have an external monitor or projector plugged into the laptop being used for questioning. That way everyone can see the witness without having to gather around the laptop.

    There is a widespread belief that live testimony is always better. I think it comes from appellate opinions where higher courts generally do not question a judge or jury's assessment of witness credibility. A cold transcript does not convey demeanor, tone of voice, etc. so the people observing the testimony are in the best position to make those kinds of evaluations.

    In my experience, telephone testimony and other electronic media work just fine. The witnesses will still be under oath, direct and cross examinations will still take place, and a fair hearing providing due process can be held even when the witness is not in the same room as counsel and the arbitrator.

    I hope this is helpful.

    This answer is provided for educational purposes only and does not purport to provide legal advice, nor does it establish an attorney client relationship.

  2. Kenneth Allyn Sprang

    Contributor Level 15

    3

    Lawyers agree

    Answered . Live testimony is always preferable, much as in person meetings are often preferable to video or phone meetings. However, if you need to resort to an alternative and the arbitrator and all parties agree video testimony would be the first choice and telephone a distant second. With the telephone the arbitrator cannot see the body language of the witness. So, my recommendation is video testimony if you must proceed and cannot arrange live testimony.

  3. Billy Bruce Johnson Jr.

    Contributor Level 6

    3

    Lawyers agree

    Answered . First you should decide if you need the witnesses' testimony or whether the witness' absence and lack of testimony hurts the respondent more than you. If it is the respondent's witness then presumably they will be presenting evidence favorable to their position but perhaps not.

    You should also determine whether the witness can be subpoenaed. For example, the AAA's Commercial Rules provide for the arbitrator to subpoena a witness. A determination as to whether to subpoena the witness will also require you to determine whether the witness is likely to be favorably disposed to your claims or not. You don't want to alienate the witness by issuing a subpoena if the witness truly has a valid reason they cannot be present as opposed to just not wanting to appear.

    As for obtaining the testimony, again it depends on whether you believe seeing the witness will assist you or not. If you believe the witness will present badly, then video is useful. If, on the other hand you just want testimony, you can forgo the video and go with a printed transcript which can be read into the record at arbitration. Also, you can avoid the cost of a hired videographer by videoing the deposition yourself. You will still need a court reporter to transcribe the depo of course.

    Regardless of what way you decide to go, you will likely need to bring the matter to the attention of the arbitrator and ask the arbitrator to order the issuance of the subpoena or the deposition. You will want to include whether the depo will be by video and orally or just orally to avoid problems later. If the witness is ill and likely to not be available later and you want the testimony, you should take the depo. Telephone testimony is an option but not a particularly good one in my opinion simply because it will not have the impact of video or the printed word in front of the arbitrator. Additionally, you can count on some technological or scheduling problem arising with telephone testimony. It should be your last option I believe.

    The major con to a deposition is the cost. If the respondent is claiming the hearing needs to be delayed because the witness is not available, I would urge the arbitrator to not continue the hearing because if the respondent really needs the testimony from the particular witness, they can depose the witness to get the testimony. This might force the respondent to foot the bill for the depo or prevent the delay if the arbitrator agrees and tells the respondent to depose them or forgo the testimony.

    Good luck.

    The answers submitted by Bruce Johnson or The Bruce Johnson Law Firm or any of its agents, employees, or... more
  4. Deborah J. Rothman

    Contributor Level 4

    1

    Lawyer agrees

    Answered . As I understand it, you are, or you represent, the Claimant, and the respondent's witness is not available to attend the arbitration to present live testimony, and you want to know what alternatives would help the claimant without delaying the proceeding. There are a number of options that arbitrators can permit--the submission of a Declaration sworn to under oath, setting out the witness' testimony; testimonay via telephone; or testimony via video. The latter need not be expensive--arbitrators are accustomed to taking testimony via Skype, as long as it is set up the way Dan Yamshon describes, with one or more video monitors for all to view. It is important, in deciding whether to propose, or oppose, this witness' appearance other than in person, to determine how this testimony will help or hurt your case. A sworn Declaration is fine if the testimony is fairly routine and non-controversial, such as to authenticate the signatures on documents or to describe how business records are kept. At the other extreme, if you believe the witness' testimony could greatly damage your case, or if you believe the witness might not testify truthfully, you would not want him or her to be able only to submit a Declaration because you would not even be able to cross-examine the witness. Similarly, telephonic testimony would not be advisable because the arbitrator would not be able to detect whether, for example, someone was coaching the witness, nor see any indicators that the person was not telling the whole truth. In addition, if you know something about the witness and the nature of the testimony, ask yourself if you want to minimize the impact of the witness, perhaps by agreeing to telephone testimony with the right to cross-examine the witness.

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