By Mark Malachowski, Esq.

My cardiologist expert witness was billing out at $500 an hour, and I wanted to make sure that my client did not have to pay travel and court time if the expert witness would show up but delays would prevent him from testifying for a court hearing on the scheduled day. I had to I make an ex parte motion for the expert to appear by Skype, because the clerk of the court informed me that the Palo Alto court had never had a Skype court appearance before.

I was surprised that in the heart of Silicon Valley, where almost every computer and software based invention had been initiated, Skype had never been used in the court room.

The judge was a little skeptical, but I argued that the expert was giving technical testimony, and was not a percipient witness, and thus his personal presence was not essential. Also, there was no expert with his acumen in the state of California, and his travel time was several hours each way. There are just not that many experts on how congestive heart failure affects cognitive abilities and that was the nature of the expert’s testimony. The motion provided an offer of proof that the expert witness testimony was likely to establish an affirmative defense, or impeach the testimony of the opposing party.

The judge granted the motion On January 23, 2015, and allowed the expert to appear by Skype connection and a large monitor facing the judge on edge of the witness stand. The court Wi Fi transmission was not of sufficient strength to be reliable in the court room, and thus we improvised, using a smart phone as a hot spot complete the link.

The smart phone link worked, and the Palo Alto court is now in the digital age.

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Mark Malachowski is an Attorney at The Law Offices of Malachowski and Associates (www.marklawsf.com), which has offices in Los Altos and San Francisco, California. His practice areas are estate planning, trusts and wills, trust and wills contests, employment law, and business law.