Texting the Witness During Video Deposition. There’s an App to Prevent That.

If attorneys are concerned about opposing counsel texting a witness during a remote, virtual deposition, there are some remedies for that, at least in some circumstances.

While some claimants’ attorneys have experienced and suspected the “remote coaching” problem, insurance attorneys said Tuesday that most reputable lawyers know better, especially after the Florida Supreme Court recently suspended a workers’ compensation defense attorney for 91 days for texting an adjuster during a telephone deposition.

The court in November found that Derek James had repeatedly sent text messages to the adjuster as she answered questions from a claimants’ attorney. James sealed his fate when he inadvertently sent texts, intended for the witness, to the opposing counsel.

Before that, few defense attorneys had engaged in such behavior, and even fewer try it now, attorneys said. “No one’s doing that,” said Louis Stern, of the McConnaughhay Coonrod firm in Florida.

Stern spoke at a panel at the Workers’ Compensation Institute’s 75^th annual educational conference in Orlando, on the changes that the COVID-19 pandemic has brought to the legal system. One of the biggest changes, which panelists said is here to stay, nationwide, is using telephones and computer videoconferencing for depositions and hearings.

A California lawyer said her firm now insists on using software that helps prevent secret messaging. Veritext Legal Solutions and other vendors offer videoconferencing technology that allows users to block the “chat” function that’s normally available on Zoom, Microsoft Teams and other videoconferencing platforms. The chat allows participants to discreetly message each other with text.

The latest legal deposition software “is great. You can disable the chat function completely,” said Emily Edwards, senior counsel with the Manning & Kass firm in Los Angeles.

Another setting allows conference participants to track a witness’ keystrokes, mouse clicks and even body language.

To prevent text messaging through the use of smartphones during a videoconference, Edwards said she asks witnesses to place their phones where they can be seen on camera. If caught looking at the device, the attorney can ask the witness to stop.

For telephone-only depositions, without a video interface, things can be a little trickier. Stern and other lawyers at the WCI conference said that if there are any suspicions at all, the deposition is halted.

“I had a claimant who was on the phone in a car, and there was no way to know who else was in there with them,” Stern explained. He stopped the deposition at that point and rescheduled.

On other changes rendered to the legal system by COVID, panelists said the contagion has raised new questions for general liability insurers as well as comp carriers. In one California case now on appeal, a woman claimed she was infected at work, then brought the virus home to her husband, who died, Edwards said.

The woman has filed a wrongful death suit against her employer. Until that case and others like it is settled law, it raises more questions: If an infected employee takes a city bus home after work and infects dozens, can the employer be held liable for the resulting illnesses and deaths?

“It’s pretty scary, to be honest,” Edwards said.

“COVID has changed the bones of the system, and we may see that bleed over to the general liability side,” said Bobby Stokes, a Texas insurance attorney who moderated the panel Tuesday.