A long-distance call: Rule will allow remote testimony by video

Partner C. Frank Hilton chaired the Boyd-Graves committee that recommended rules to guide audio-visual testimony.  See article below featured in Virginia Lawyers Weekly.

February 24, 2020 – By:  Peter Vieth

“A long-distance call:  Rule will allow remote testimony by video”

A new rule promises to open opportunities for Virginia lawyers to present trial witnesses by video from distant locations. Witnesses will be allowed to testify by audio-video links at civil trials under the rule that takes effect March 15.

The rule may find common use in personal injury cases. The language suggests a judge should normally allow a treating medical provider to testify by video unless there is good cause to require in-person testimony. But the rule says parties and experts should be allowed to appear remotely only under “exceptional circumstances.”

The Supreme Court of Virginia approved Rule 1:27 on Jan. 9 after two years of study by a Boyd-Graves Conference committee and preparation of a draft by the Advisory Committee on Rules of Court. It applies only to civil actions in circuit court.

Framework of standards

Besides its preference for allowing remote testimony of doctors and others providing medical care for a party, the rule sets other standards for considering long-distance witnesses.

The remote testimony “should” be allowed for any witness if all parties consent. The trial judge also “should” allow the video link if a lay witness is more than 100 miles away or out of state.

A judge “may” permit distant testimony of a non-party lay witness if good cause exists. A higher standard applies for party or expert testimony. Under “exceptional circumstances,” the court “may” permit video testimony of party and expert witnesses.

The rule provides a non-exhaustive list of considerations:

1. The age of the witness, and whether the witness has disabilities or special needs,
2. Whether translation may be required,
3. Procedures available for handling of exhibits,
4. Mechanisms for making and ruling upon objections – both within and outside the hearing of the remote witness,
5. Procedures for sidebar conferences between counsel and the judge,
6. Mechanisms for the witness to view counsel, the parties, the jury and the judge,
7. Practical issues such as the size, number and location of display screens at both locations,
8. Any requirements for camera angle, camera movement or point of view; any picture-in-picture requirements,
9. How to attain the required encryption,10. Creation of the record of the testimony and
11. Any necessary limitations or conditions on those who may be present with the witness and whether those persons must be identified before the testimony begins.

The responsibility for all arrangements falls on the party offering long-distance testimony. Failure to ensure everything works will not be grounds for continuance under the rule.

“The parties bear the risk,” explained C. Frank Hilton of Harrisonburg, who chaired the Boyd-Graves committee that recommended rules to guide audio-visual testimony.

If there is a courthouse power failure or similar malfunction, the judge is authorized to grant a continuance or other relief, under the rule.

Existing statutes

The study committee found three current statutes that already offer guidance for lawyers considering use of remote testimony. Va. Code § 17.1-513.2 applies to civil proceedings in circuit courts, § 16.1-93.1 applies to civil proceedings in district courts and § 19.2-3.1 sets standards for audio-video appearances generally for pre-trial matters.

Those using the remote link must be able to simultaneously see and speak to one another, the signal must be “live, real time” and the signal must be secure from illicit interception.

Section 19.2-3.1 says use of two-way remote links is subject to any other specifications “promulgated by the Chief Justice of the Supreme Court.” The new rule is a response to that invitation, according to the advisory committee.

The study committee found courts were taking different approaches to use of electronic connections for remote witnesses.

“Telephone testimony was happening at all levels, including J&DR courts,” Hilton said.

The committee took the stance that, if audiovisual testimony was going to happen, “let’s get out in front of this and do it right,” Hilton said.

Expert use discouraged

Some of the concerns about remote expert witnesses recently emerged in a medical malpractice action in Richmond Circuit Court. A plaintiff’s attorney proposed to offer audiovisual testimony at trial from a reviewing physician in the state of Washington offered as a fact witness. It appeared the doctor’s testimony would underpin the plaintiff’s theory of malpractice.

In a 2019 motion in limine, the defendant physician complained his lawyers would be unable to observe the witness’ mannerisms, gestures and affectations. The lawyers would be unable to hand the witness documents or other materials.

To force the defense team to submit cross-examination materials in advance “negates the entire purpose of cross-examination,” the motion stated. The case resolved before a judge could address the issue.

But parties and experts are special cases under the new rule, Hilton explained.

“We came to agreement that parties and experts more often than not ought to be in the courtroom,” Hilton said.

Remote testimony is best used for non-critical witnesses, such as medical records custodians, Hilton said.

“This is the perfect thing for that.”

Consent forms

Out-of-state witnesses may be leery about the consent form they will have to sign.

“While the consent requirement may limit the number of remote witnesses willing to provide distance-testimony using this procedure, since it highlights the witness’s exposure to perjury, contempt or other orders of the Virginia trial judge, the Advisory Committee concluded that having such safeguards will be needed to assure the integrity of the testimonial process for our courts,” the committee stated in 2019.

“The hope is that enough situations will arise where the remote witness procedure is used that – over the coming years – Virginia litigators and judges will gain experience such that the rules governing this process can be adjusted to increase convenience and reduce burdens on all parties and the court.”

Woman Leaves $4.3M Gift

Money Split Between Four Local Nonprofits – By Vic Bradshaw – Daily News-Record

Four local nonprofits received nearly $4.3 million on Friday from the trust of a Wisconsin native who made her home in Bridgewater.

The late Marion Elsbeth Carson left that amount for two departments at the Sentara RMH Medical Center, Bridgewater College, the Massanutten Regional Library and First Step: A Response to Domestic Violence. She also provided a gift to the Virginia Museum of Fine Arts in Richmond.

Don Showalter of Wharton, Aldhizer & Weaver said it’s the second-largest trust dispersal he’s handled in his 53 years as an attorney.

Sentara RMH’s oncology department and Bridgewater College each received checks for $1,191,605.80.

Carson directed the hospital is to use that money to help recruit and retain an oncologist at its cancer center. Donated in memory of her parents, Archie G. and Grace Maycroft Carson, she directed Bridgewater to use its money for its fine arts and/or humanities programs.

The library was provided $953,284.64, another $714,963.48 was left to Sentara RMH for its emergency department, the Virginia Museum of Fine Arts was gifted $476,642.32, and First Step received $238,321.16.

Carson died in 2000. Showalter said her father was an executive and large shareholder of a Wisconsin electric company and left his daughter, who never married, a significant inheritance.

She taught art, he said, and was an avid reader, particularly of poetry.

Carson established the trust in 1990, stipulating that it was to provide income for her cousin, Esther Rose Hall, until her death. Hall died in April 2017 at the age of 96.

Showalter said the trust was valued at less than $2 million when he and a co-trustee began managing it. Over the years, its value more than doubled.

Books Plus Money

The Massanutten Region Library received more than money from Carson. When she died, her book collection — which Showalter said included some first-edition poetry books – was left to the library.

Michael Evans, the library’s director of advancement, said he thinks Carson’s is the largest individual gift MRL has ever received. The library’s board will decide how the money will be spent.

“It means a great deal to us, obviously,” he said. “In general terms it will give us resources to improve the library going forward, expand programming, expand services to our patrons in Page and Rockingham counties.”

Massanutten Regional Library has an annual operating budget of $2.3 million this year, Evans said.

Though the amount is smaller, Candy Phillips said the gift is the largest individual donation First Step has received since she took over as director in 2008.

The money can make a major difference in First Step’s efforts to help domestic violence victims, she said. Demand for services has increased in recent years, and the organization needs to grow to help those in need.

“It’s so exciting and so overwhelming to have Ms. Carson think of us and to include us as part of her trust,” said Phillips. “It opens up some possibilities to give us a chance to think about growth and possibly expansion in the future.”

The organization’s board of directors, she said, is considering multiple options that include using between $50,000 and $60,000 to pay off the mortgage on its building.

Bridgewater College also hasn’t made any decision on how it will use its money, according to executive vice president Roy Ferguson, but the college has been considering introducing new programs in its fine arts and humanities programs.

“These kinds of gifts are transformative for the kind of education that we provide for our students, so we’re thrilled and grateful,” he said.

Carson, said Ferguson, was a good friend of Phil Stone, Bridgewater’s president emeritus.

Showalter said Carson had a form of cancer and traveled to Charlottesville for treatment because RMH wasn’t able to help her at the time, so she wanted the hospital to improve its care for cancer patients.

She also, he said, was concerned about those who had to turn to the emergency room for their healthcare and thought RMH’s department at the time was limited.

The more than $1.9 million is among “the top two or three gifts” the RMH Foundation has ever received, said executive director Cory Davies.

Both departments, he said, are exploring ways to improve patient care, and the additional money will help it reach its goals sooner.

“It’s not an overstatement to say that this can be life-saving for people that come to our hospital,” said Davies. “It’ll make a tremendous difference for them.”

Carson’s gift, he added, is going to leave a legacy for her compassion and her caring for her community, but it’s going to be felt in our patients’ lives for “years to come.”

Showalter said the largest trust disbursal he’s handled was from Burgess and Julia Nelson. It totaled more than $5.1 million and went to two hospitals — Shenandoah Memorial and what was then Rockingham Memorial — in 2010.

By Vic Bradshaw – Daily News-Record

Bar Honors Late Attorney – Daily News-Record Article

Local Bar Honors the Late George R. Aldhizer, Jr. – By Pete DeLea – March 25, 2017

HARRISONBURG — George Raymond Aldhizer Jr. worked hard at everything he did.

He was known as a stellar attorney, including a 23- year stint as Rockingham County’s attorney. Aldhizer was also a successful cattle farmer. But, most of all, his friends say, he was known simply as a nice guy. “ The world lost a true Southern gentleman upon George’s passing,” said Glenn Hodge, who worked with Aldhizer for roughly 40 years. “ How he lived his life — with honesty, integrity, quiet stoicism

and good humor — remains an inspiration.” Hodge was among several dozen community members to gather Friday afternoon in Rockingham County Circuit Court for a special session to accept resolutions from the Harrisonburg- Rockingham County Bar Association honoring the late Aldhizer. Judge T. J. Wilson presided over the ceremony. “ He was a man held in high regard to all that knew him,” Wilson said.

Aldhizer, 84, died Sept. 19, 2015, at his home on Maple Leaf Farm in Harrisonburg. He was born March 9, 1931, in Harrisonburg to the late G. Raymond and Florence Brunton Aldhizer, according to his obituary. He was preceded in death by his wife, Lo Byerly Aldhizer.

According to the resolution, he earned an undergraduate degree from the University of Richmond in the early 1950s. He spent the next two years as a field secretary for his fraternity, Phi Gamma Delta. Aldhizer graduated from the University of Virginia Law School in 1958 and joined Wharton, Aldhizer and Weaver in Harrisonburg, the resolution says. His father, George Aldhizer Sr., was a partner in the firm. “ The three named partners … were all tough and demanding bosses in their own way, and by the time George became a partner, he had passed through an unrelenting and grueling apprenticeship,” Hodge said.

Most of his career focused on business and real estate law until he retired from the firm in 2003, Hodge said.

Hodge noted that one of Aldhizer’s most famous real estate deals included helping Yoko Ono purchase a Page County farm.

He served on the Rockingham National Bank board starting in the 1960s. He saw the bank through several mergers, including with Wachovia Bank, before wrapping up his service in 2005, the resolution says.

In 1971, he became the county’s attorney, and oversaw a legal battle for six years between the city and county over annexation, according to the resolution.

Outside the office, Hodge said, Aldhizer raised Angus cattle and once served as president of the Virginia Angus Association.

“For George, there was little better in the world than a medium rare beef tenderloin … certified Angus beef that is,” Hodge said. “The recruiting dinners at George’s home always gave his law firm an unfair advantage in attracting new legal talent.”

Daily News-Record – By Pete DeLea – March 25, 2017

P. Marshall Yoder Featured in ABA Journal

“How attorneys can turn fear into an ally” – by Kevin Davis, ABA Journal

When attorney Marshall Yoder was facing his first jury trial in 1992, he felt a deep, underlying sense of fear. “I remember being very anxious and very nervous,” he says. “The stakes were high. I was thinking, ‘This is my first one, and I really want to do it right.’ ”

Yoder, a commercial litigator with Wharton Aldhizer & Weaver in Harrisonburg, Virginia, was defending a rural North Carolina grocery store in a slip-and-fall case and was up against an experienced plaintiffs attorney. A woman sued the store after slipping on a grape in the produce section and injuring her back. She claimed the store was negligent since she didn’t see the grape because she was distracted by a promotional display of fatback, a cut of pork popular in Southern cooking.

As a young lawyer then, Yoder not only had the jitters—he wanted to make a good impression and make sure he had control of his case. “So I just prepared, prepared, prepared,” he says. “I think there’s more fear of the unknown than anything else.”

By the time the trial came around, Yoder knew his case backward and forward, and he worked to channel his nervous energy into his jury presentation. “Once I started doing it, the fear went away and there was this edge,” he says. “It actually became fun.”

On top of winning the case, Yoder learned how to lasso fear into an ally.

STRESS TEST

Experiencing anxiety before going to trial is not uncommon. The challenge for many lawyers is taking that nervous energy and using it to their advantage.

Yet lawyers often are imprisoned by fear. They’re fearful that their cases are out of control. They’re fearful of looking foolish. They’re fearful of negotiating. They’re fearful of appearing weak. Even continuing legal education courses can contribute by making lawyers fear that they are not up to date on current practices or wary of the myriad number of things that can go wrong.

(Is one of your fears among the most daunting? See “Lawyers’ Top Fears.”)

Being fearful is not always bad, as Yoder found out. Lawyers need to manage and embrace their fears rather than succumb to their de-structive powers, says John Lande, a professor emeritus at the University of Missouri School of Law. Lawyers’ fears, he says, can lead them to enhance their performance with increased preparation and skills for thinking effectively on their feet.

Lande examined fears endemic to the legal profession in a 2014 article, “Escaping from Lawyers’ Prison of Fear,” published in the University of Missouri-Kansas City Law Review.

[Photograph by david hills]

Marshall Yoder. Photograph by David Hills

Fear has become part of the legal culture because lawyers, like soldiers, often feel engaged in battle. “There is a sense of being in adversarial combat,” Lande says. “You’re dealing with an enemy that’s shooting back and you have to anticipate their moves and strategies.”

“We just move in an atmosphere of fear. It’s intrinsic to the profession,” says Bill Rotts, a plaintiffs lawyer in Columbia, Missouri. “We’re fearful for our clients and fearful of making a boneheaded decision. We’re fearful for our reputation. We’re in a constant fear environment.”

Rotts, a former prosecutor as well as a mountain and wilderness guide, says fears stem from how lawyers view themselves, and whether they feel they’re firmly in control of their clients and cases or are trying too hard to please. “There’s that fear that you won’t do a good job. You worry about burying yourself in a mess,” he says. “There are fears that haunt you in every case—of them going out of control and letting things collapse.”

Though Rotts has argued hundreds of cases before juries and appeared in courthouses across the state, including the Missouri Supreme Court, he became the most fearful he’d ever been when he was called to argue a case in the 8th U.S. Circuit Court of Appeals. He was representing a group of clients who claimed they were victims of racial profiling at a Dillard’s department store.

Rotts remembers his fears coming from many sources. He wanted badly to win for his clients in what he considered an important civil rights case. He felt pressure arguing against seasoned lawyers. He also felt intimidated by the grandeur of the Thomas F. Eagleton courthouse in St. Louis, the largest federal courthouse in the country and home of the 8th Circuit. In the shadow of the courthouse was the Old Courthouse, where the famous Dred Scott case over slave rights was argued.

“Here I am from a small law firm trying to push an enormous constitutional question,” Rotts says. “It was in the most impressive courtroom you can ever imagine. The judges surround you like a horseshoe. You can’t imagine how intimidated I was to be there.”

Rotts asked himself: “What do you do? How do you get over it?”

He decided to surround himself with the people closest to him. He asked his law partner to come, as well as his three children, hoping their presence would motivate him in the same way he was motivated to be a good father. “They all dressed up perfectly in their suits and sat right in the front row,” he says. “You live day to day with your kids and you never want them to see you as weak or undecided, but instead confident and in control.”

When it came time to speak Rotts stepped up. “I still had the jitters in the worst way. It was one of the scariest moments in my life,” he says. “I think I made the best presentation in my life and have [my children] to thank.”

Though he lost the appeal, Rotts felt he won something by tackling his fears. “When you’re a plaintiffs attorney, you get used to losing,” he says. “You close the file and you go on.”

DAMAGE ASSESSMENT

While it’s normal to feel anxiety before and during a trial, some attorneys may find their fears all-encompassing.

Early in her career, Seattle attorney Sevilla Rhoads felt anxiety about meeting her clients’ expectations and being as prepared as she could. But she felt that her fears were taking too large a toll on her health and ability to think as effectively as she wanted.

Her fears sometimes led to fatigue and migraine headaches. They triggered stress that affected her physically, making her shoulders tense and filling her body with adrenaline. “It impeded my ability to think as clearly as I knew I could,” says Rhoads, a labor and employment lawyer with Garvey Schubert Barer.

Then about 15 years ago, Rhoads was introduced to stress-reduction techniques and skills and began to rethink how she wanted to practice law and be more mindful about her life and work. “Over time, I realized I could be more effective without being fear-based,” she says.

The fear is compounded because while clients are relying on their lawyers to win, many factors are beyond the attorney’s control. “That responsibility used to cause me anxiety, but now inspires me to manage my stress constructively,” Rhoads says.

Lande says fear is often necessary, and that it helps keep lawyers on their toes. He compares lawyers’ fears to those experienced by soldiers whose heightened state in battle can help them stay alert, cautious and able to respond effectively to threats.

While lawyers are not actually dodging bullets, they do experience the same types of fears as soldiers. They’re categorized into realistic fear, fear of the unknown, anxiety, illogical fear or fear of failure. Lande cites research by military expert Michael Asken, who recommends dealing with such fears through increased training, simulations of frightening situations, setting appropriate goals and going through mental rehearsals.

[Photo Illustration by Stephen Webster]

Photo Illustration by Stephen Webster

Asken suggests that dealing with fear of failure requires accepting the inevitability of making mistakes and appreciating the value of those mistakes as part of learning. He also recommends stress-management techniques, psychological counseling and developing a positive outlook.

But it can be a problem when fear is out of proportion to the actual threats and remains unaddressed. It can lead to obsessive-compulsive disorder, panic attacks, phobias and post-traumatic stress disorder.

Not surprisingly, research suggests that many lawyers’ fears develop during law school, where students may seem outwardly confident but may be masking feelings of inadequacy, uncertainty and nervousness. The stresses of carrying a heavy workload, studying theoretical concepts rather than practical law and getting good grades contribute to their fears.

One of the biggest fears among law students is being humiliated in front of their classmates. “Law schools don’t do a very good job of preparing students to practice,” says Lande, “and part of that involves building confidence.”

LEARNED ATTITUDES

“Law school instills a ‘win at all costs’ mentality rather than a focus on practical client solutions—including the use of collaboration,” Rhoads adds.

Yoder remembers enduring the questions of his professors during Socratic-style exchanges. The experience was not necessarily positive. “Coming out of that makes you hypercritical and hypersensitive,” he says. “You parse everything, and I was like that when I came out.”

There was something else missing in his legal education. “When I went to law school, there were no negotiation classes,” Yoder says. “That was a fear I had … how to negotiate. When you view this with fear, that’s where attorneys go into this default of being argumentative, fearful. When attorneys feel threatened, they go into that mode.”

Lande couldn’t agree more. His study found that lawyers fear negotiating, sometimes to the detriment of their clients. “This is deeply embedded in the legal culture,” Lande says. “There is a generally recognized phenomenon that lawyers are afraid to negotiate, or that if they suggest negotiation that the other side will perceive that as a weakness.”

Lawyers often fear their clients will see them as weak if they suggest negotiating. “Lawyers are caught in the middle. They want to project strength and confidence to their clients and to the other side, but they know very well they might have to negotiate,” Lande says.

Lande suggests lawyers spend more time developing better relationships with opposing counsel, because so much of law depends on negotiation. “One of the tricky things is the appearance that the relationships with their counterparts is too chummy,” Lande notes. “Clients often have the expectation that their lawyers are going to be tough, like the ones they see on TV.”

Rhoads found, as Lande suggests, that building a practice that embraces negotiation helped diminish her fears of using it as a tool to help clients get what they want.

“This approach may be less financially lucrative for lawyers,” Rhoads says. “The traditional adversarial mode is draining on everyone, including the courts, and less effective when you consider your client’s interests rather than your own financial gain.”

Rotts has taken a similar approach, which helps alleviate his fears. “Negotiation is the very essence of the practice. Most of my day is negotiating. I’m the plaintiff, and I’m asking for something,” he says. “We’re not afraid of it. But you also have to be recognized as someone who won’t roll over. Clients want the bulldog. They want someone who’s tough and who’s going to make it right.”

Lande’s study found that even negotiation can induce fear. (See “Negotiation Nerves.”)

When he began practicing, Yoder learned better ways. “I got to see some very seasoned litigators in negotiations,” he says. “What I saw was collegial ways of negotiating. It was firm. It was serious. But they also talked about their wives and kids and what they liked on TV. My takeaway was that effective lawyers were not the people who banged on the table and screamed.”

Yoder tries to not bang tables or operate on fear if an exchange with another lawyer becomes tense. “I still go there and then I catch myself,” he says. “There’s a physiological response—a fight or flight feeling. I take a deep breath. If I feel my breath getting short, I do breathing exercises.”

Breathing can indeed be an effective method of calming down. Yoder says he’s often used a method he read about from best-selling author Dr. Andrew Weil called 4-7-8 breathing. “You breathe in for four seconds, hold for seven and breathe out slowly for a count of eight; and you do this several times,” Yoder says. “If I’m going into a tough negotiation and I know there will be high emotion and intensity, I do this.”

MINDFULLY MANAGED

Rhoads, like many other lawyers, practices the mindfulness techniques of Jon Kabat-Zinn, founding director of the Stress Reduction Clinic at the University of Massachusetts Medical School, and noticed she was more successful in negotiations and litigation. In 2010, she and a group of fellow Washington litigators formed the Washington Contemplative Lawyers, which meets weekly to practice skills to be more effective lawyers and, at the same time, experience a better and healthier quality of life where they are able to be driven by client interests rather than fear.

Lande suggests mindfulness and meditation as ways to address fears, but he also points out that some lawyers are so absorbed by fear that they may need mental health counseling. Those who try to alleviate their fears through drugs or alcohol are candidates for counseling as well.

Even though most lawyers likely feel some kind of anxiety at some point, Lande admits that the title of his study, Escaping from Lawyers’ Prison of Fear, is part hyperbole to make a point. “But some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income and experiencing greater satisfaction in their work,” he writes. “Lawyers who can manage their fears effectively are likely to do better than those who do not manage their fears as well.”

Related article:

ABA Journal: “32 of lawyers’ most common fears”

This article originally appeared in the November 2015 issue of the ABA Journal with this headline: “Lawyers Shackled by Fear, Fear Not: While feelings of dread may be endemic to the legal profession, they can be transformed to positive effect.”