Dana L. Plunkett
Deputy Commissioner
Virginia Workers’ Compensation Commission

and

Jason Cording
Deputy Commissioner
Virginia Workers’ Compensation Commission

The situation is all too familiar to judges.  A witness hesitantly looks at his attorney or someone else before answering a question.  This may reflect the nerves of someone who has never been in a courtroom before.  Perhaps they are looking for some sort of validation or, worse, an answer.

From the bench, we notice the pause and the deferring glance of the witness.  We see the spouse on the edge of the seat anxiously waiting for the opportunity to interject or affirm the testimony as the witness looks that way.  Worse yet, the spouse mouths the answer, nods or openly blurts out a response.

These cues are easy to observe when we have a full view of everyone in our courtroom.  We immediately instruct the witness that they need to answer the question to the best of their ability without any assistance, and we may admonish others in the courtroom if their behavior is inappropriate.

We lose many of these observational cues and situational awareness when our hearings enter the virtual world because we are limited to the camera view of the participants.  Is the pause and gaze off camera a moment to reflect and recall before providing the answer, or is someone coaching the witness?  Voices in the background—are they from a TV, coworkers from a nearby cubicle or a child complaining that mom’s hearing is interfering with the bandwidth for gaming?  Or is someone feeding answers to the witness?

Judges commonly ask witnesses in virtual hearings about the presence of other people, suggest they use headsets and instruct them on the appropriate surroundings.  What else can we do?

The Virginia Workers’ Compensation Commission, like so many other jurisdictions, suspended in-person operations for a short period of time in 2020 following the COVID outbreak.  We quickly implemented a plan to conduct virtual hearings, and the Commission issued an Order that set an expectation concerning virtual testimony.

[1]  A copy of the Order is sent to the parties when the notice for the virtual hearing is issued.  Paragraph 4(B) of the Order states:

Oaths required: Witnesses will be sworn remotely and all witnesses must aver prior to their testimony that they shall not receive any undisclosed or other assistance from any source while testifying.

To implement this requirement, we have the witness swear as follows:

Do you swear or affirm that you will not accept help from any undisclosed source while testifying, under pains and penalties of the Commission’s contempt powers?

The oath is a simple and effective means to put witnesses on notice of the expectation that the virtual hearing will mirror the in-court setting.  It is, in effect, a way to set the groundwork for a rule on witnesses in the virtual world where we are not necessarily able to control a witness’s surroundings.  The oath also informs that witness that there are consequences for inappropriate assistance during their testimony.

Beyond contempt, there may be other consequences.  In November 2021, a Virginia judge determined that a claimant was not credible because his brother blatantly coached him from off camera.  The judge noted that the brother made several attempts to provide the claimant answers before being directed to leave the room.  In his opinion, the judge identified at least one answer that the claimant accepted from the brother despite affirming that he would not accept any help from an undisclosed source while testifying. Having found that the claimant’s credibility was essential to establish the compensability of the unwitnessed accident, the judge explicitly denied the claim because the claimant’s testimony was not credible.

In a separate case involving a virtual hearing in Virginia, the judge was able to identify a potential problem and sought to remedy it without the exercise of the Commission’s contempt powers.  The claimant was bilingual and testifying in English, but the judge kept hearing Spanish in the background.  The hearing was stopped to clarify, and the claimant admitted that she had her son in the room off camera.  Although the judge did not know precisely what was being said in Spanish, she was highly suspect that some degree of coaching was taking place since the Spanish being spoken was contemporaneous with the timing of when the claimant would answer the questions.  The son was told to leave the room and the claimant acknowledge that he had left, and the testimony resumed.

Since our hearing clerks in Virginia manage the virtual proceedings, we find it to be a best practice to have the clerk sign off last at the conclusion of the hearing.  In the case with the coaching in Spanish, the video showed that the speaking in Spanish resumed within a second after the hearing was deemed over and the Commission went “off the record.”  The son also immediately appeared on screen to log off the meeting.  This made it clear that he had never left the room after being instructed to do so.  In that case, the claimant’s credibility was not central to the decision, which was in large part based on the expert medical opinions.

These examples remind us that, as judges we must be diligent in the virtual setting and may need to repeat the admonishments of the oath to not accept coaching.  We may need to ask that the camera be panned around the room to verify who is there.  We can do this to both to catch a problem before it starts, and to try as much as possible, to replicate an in-person setting.  A virtual hearing can accommodate family members being present for moral support, but they must not be allowed to compromise the reliability of the testimony.  The goal is not to make virtual hearings more restrictive and stressful on a claimant, many of whom are pro se.  In a virtual hearing, a simple solution is to require the family member to stay visible on camera during the entire course of the proceedings, so if any coaching is attempted, it can be seen and will appear on the video recording, which is part of the formal record.  Measures such as incorporating the specialized oath, panning the rooms, and use of admonishments can help to safeguard the goal of making hearing testimony, whether in-person or virtual, reliable.

[1] The Order was revised several times, and the most recent iteration of the Revised Order Regarding Evidentiary Hearings During the COVID-19 Pandemic may be found at https://workcomp.virginia.gov/sites/default/files/News%20and%20Notices/COVID-19-April-2022-Order.pdf (retrieved 9/23/2022).