On the Trail of the “Virtual” Expert: Counsel’s Guide for the Current Pandemic

The Virtual Expert Distinguished

The virtual expert is often confused with two other types of expert. The first of these is the “virtuous expert”—an elusive, some might even say chimeric creature who understandably may suffer from a bit of an identity crisis. This is because every criminal lawyer claims to have one, while insisting that the other side does not. Might the virtual expert be a virtuous expert as well? When the time comes for virtual court appearances, this can become a matter of considerable debate. From counsel’s perspective, the most natural approach to making this determination is cross examination, classically described as “the greatest legal engine ever invented for the discovery of truth.” 3 Wigmore, Evidence § 1367, at 27 (2d ed. 1923). As we shall presently see, however, that engine may not run too well in the rarified atmosphere that surrounds the virtual expert.

The second type of expert with which the virtual expert is often confused is the “phantom expert.” Here, counsel’s own virtue is open to question when the decision is made to “name an expert witness and/or proffer his or her anticipated testimony without sufficient or appropriate contact with that expert to justify the use of the expert’s name or the alleged opinion.” Thomas G. Gutheil, Robert I. Simon & James T. Hilliard, The Phantom Expert: Unconsented Use of an Expert’s Name and/or Testimony, as a Legal Strategy, 29 J. Am. Acad. Psychiatry & L. 313, 313 (2001). Elusive though the virtual expert may be, there’s nothing quite as elusive as never being expected to testify at all. Sometimes the phantom expert has been the target of a “curbside consultation” that served little purpose other than to create a conflict that prevents retention by the other side, and sometimes there simply was never any discussion in the first place.

The Virtual Expert on Display

During the current pandemic, the virtual expert tends to sport the sort of haircut that suggests counsel has actually stumbled across an old newsreel of the Watergate hearings. The difference between those witnesses and the virtual witness is that they could have gone to the barber shop anytime they wanted. These days, the virtual witness sports a wardrobe indistinguishable from any other modern witness—until thoughtlessly jumping up to shoo away a cat, silence a ringing phone, or recoil from a spilled cup of coffee. It is at such moments that the contemporary virtual expert fashion sense is suddenly on parade: button-down shirt or conservative blouse, professional neckwear, track shorts, tube socks, and bedroom slippers.

Counsel is used to probing the background of expert witnesses; indeed, shame on the trial lawyer who fails to do so with one’s own expert as well as that for the other side. Eric Y. Drogin, Expert Qualifications and Credibility, in Ziskin’s Coping with Psychiatric and Psychological Testimony 117 (David Faust ed., 2012). With the virtual expert, however, one is confronted with a background of a more literal sort. From the Zoom- or Skype-based meetings we now seem doomed to endure for at least the balance of the COVID-19 crisis, we’re all aware of the sort of movie sets our colleagues feel inspired to provide. Some want you to believe that they just happen to be chatting with you from their dining rooms, with their most expensive piece of wall art perfectly centered on the wall behind them, their great grandmother’s tea service gleaming on the sideboard, and the book they wrote 10 years ago propped up and facing the camera—an overall style one might term “isolation virtue.” Others gave up a couple of months ago and don’t care how many dirty dishes and empty beer bottles are piling up in plain view while their children dive-bomb around the room.

The virtual witness is more likely to opt for the former type of interior decorating than the latter, favoring in particular a sort of sanitized home office background. Still, it’s worth trying to get a look at the broadcasting lair of one’s own virtual expert before the hearing or trial, if at all possible. Overly provocative sculpture and questionable titles on the bookshelf—today’s clip-on webcams often provide astonishingly high resolution—can lead to anything from a peculiar distraction to profound embarrassment.

Problems can also emerge when the virtual expert decides to go with a virtual background. For one thing, the technology here is very much a work in progress, often leading to a phenomenon known as “ghosting” (no, this isn’t the “phantom expert”), where the subject is occasionally transparent with a poorly defined outline). The virtual expert may need to be reminded in this instance that there’s nothing wryly amusing about a courtroom appearance, and that politics have no place before the bench. When the other side’s virtual expert rolls up with a virtual background, this is an excellent opportunity for counsel to find some pretext for asking that it be removed. The virtual expert must either comply—potentially revealing a sloppy mess, or perhaps something even worse—or refuse, making everyone wonder what’s really going on back there.

The Virtual Expert’s Work Product

During the current pandemic, the virtual expert’s work product is likely to have been virtual as well. There’s no pat right-or-wrong, yes-or-no judgment to be rendered when it comes, say, to forensic mental telehealth assessment (FMTA) in the course of criminal law proceedings. Every evaluation must be judged on its own merits, and the current professional literature reflects this even-handed perspective.

Social scientists have acknowledged for some time that “computer anxiety” and various manifestations of “individual differences” can interfere with online testing performance. Tom Buchanan, Online Assessment: Desirable or Dangerous? 33 Prof. Psychol. Res. Prac. 148, 151 (2002). Actual field work with forensic assessment tools, however, has established that certain measures fare comparably well when administered either face-to-face or via the Internet. Frances J. Lexcen, Gary L. Hawk, Steve Herrick & Michael B. Blank, Use of Video Conferencing for Psychiatric and Forensic Evaluations, 57 Psychiatric Serv. 713 (2006); Gina Manguno-Mire et al., The Use of Telemedicine to Evaluate Competency to Stand Trial: A Preliminary Randomized Controlled Study, 35 J. Am. Acad. Psychiatry & L. 481 (2007). Research is ongoing, and FMTA continues to evolve in both efficacy and acceptance. David C. Luxton & Frances J. Lexcen, Forensic Competency Evaluations via Teleconferencing: A Feasibility Review and Best Practice Recommendations, 49 Prof. Psychol. Res. & Prac. 124 (2018).

Defense attorneys and prosecutors alike have the opportunity to undermine the virtual expert’s remotely developed work product if they choose because, by its very definition, FMTA will be seen as a deviation from what at least up to now have been considered “standard” procedures. Just because a procedure isn’t “standard,” however, doesn’t mean that it isn’t “reliable” or “valid.” Lawyers and judges often have a difficult time grappling with the nature and implications of these two terms (see Jacqueline A. Chorn & Margaret B. Kovera, Variations in Reliability and Validity Do Not Influence Judge, Attorney, and Mock Juror Decisions About Psychological Expert Evidence, 43 Law & Hum. Behav. 542 (2019)), but there’s a convenient legal precedent that can help us to keep these terms straight in our own minds.

The late 17th century Salem witch trials were not exactly a high-water mark of New World jurisprudence. See Richard Francis, Judge Sewall’s Apology: The Salem Witch Trials and the Forming of a Conscience (2005). They did, however, provide an eternally useful heuristic for judging forensic scientific evidence. Because everyone knew that witches float, witches were tossed into the river: If they drowned, they were innocent, but if they floated, they were guilty and could safely be hanged. If “[r]eliability refers to whether an assessment instrument gives the same results each time it is used in the same setting with the same type of subjects” and “[v]alidity in research refers to how accurately a study answers the study question” (Gail Sullivan, A Primer on the Validity of Assessment Instruments, 3 J. Grad. Med. Educ. 119, 119 (2011)), then here we have a reliable procedure—after all, any second-year medical student can tell you if someone drowned—that nonetheless could use a bit of help in the validity department.

Although the virtual expert’s court appearance will be virtual, that does not mean that his or her work product can only be reviewed virtually—and, indeed, online authentication and guided discussion of documents can be a sticky affair. One recent hearing featured the spectacle of half a dozen lawyers holding a virtual expert’s report up to the camera lens and turning the pages simultaneously, to establish for the record that they were all working from the same version of that document. Such scenes can largely be avoided by requesting that downloadable copies of critical materials be certified ahead of time and distributed comfortably in advance.

The Virtual Expert in the Virtual Courtroom

Testifying via the internet can be a sweet ride for the virtual expert, starting with the fact that a “ride” is not actually required . . . nor, for that matter, is parking. Just a few years ago, it would have been virtually—so to speak—unthinkable that a witness could roll out of bed and hit the stand just a half hour later, unless he or she was currently residing in the jail next door to the courthouse. No metal detector hassles, no awkward encounters with recent examinees, no sitting for hours on a bench waiting for someone else’s case to be heard. A healthy lunch can be prepared in the next room during a midday break, instead of bumming change from counsel in order to wrestle a bag of salted peanuts, two candy bars, and a waxed paper cup of battery-acid coffee out of the vending machines in the courthouse basement.

Apart from the stir-crazy mindset that comes from pandemic-compelled home incarceration, the virtual expert is likely to display a content, even smug persona when the time comes for his or her 15 minutes of fame. Retaining counsel may wish to remind the virtual expert that there’s such a thing as being too comfortable. For one thing, it’s very easy to neglect the following virtual social graces: hitting the conferencing “mute” button, stopping the video feed during breaks, corralling one’s pets, and turning off the ringer on the telephone. It’s also advisable not to “rest one’s eyes,” to sneak a cookie from a desktop tray, or to wander off-camera for a drink refill without obtaining the court’s permission.

Speaking of what occurs off-camera, opposing counsel and the judge are likely to be particularly concerned about what the virtual expert may be accessing just outside the frame. In some courtrooms, witnesses are free to rifle through a morass of printed documents when preparing to answer questions on direct or cross examination. In others, the court will issue a stern admonition if a single page is positioned anywhere within a witness’s line of sight. The virtual expert’s overseers and adversaries will soon learn to be exceptionally wary of repeated gaze deviation, whether this is occurring to check one’s own appearance in the corner of the monitor screen, or to consult a testimonial script or other recollection-refreshing aids.

The more computer-savvy virtual expert doesn’t need to look too far away from the lens to peruse illicit sources of prompting. The conferencing app can be minimized on the screen, in order for documents to be brought up that are directly in the virtual expert’s line of sight. In addition, there is often a “chat” function available during online conferencing sessions that allows for private, real-time communication between designated participants. Opportunities for abuse are legion:

“You saw her on the 3rd, not on the 13th!”

“Just say that you don’t recall.”

“Should I mention the IQ testing now or later?”

“Where do you think he’s going with this?”

In order to avoid the prospect of a hearing or trial being scuttled, at considerable expense to courts, clients, and professional reputations, it’s best to anticipate and work out such issues in advance. The virtual expert might actually be unaware of the questionable nature of document perusal and backchannel communication, until warned by the court or by counsel. Opposing counsel is well within his or her rights to insist on the use of a “shared screen” function during virtual testimony, as a means of preventing unwarranted exploitation of online media.

Although its population, distribution, and migration habits will fluctuate considerably with the ebb and flow of pandemic conditions, it is safe to predict that the “virtual expert” is here to stay. Judges and lawyers alike are best advised to study and anticipate the problematic peculiarities as well as the cost-cutting and time-saving appeal of the species, and to plan accordingly.