Trial Testimony by Streaming Video Authorized By Illinois Supreme Court Rule for Unusual Situations

Now we have trial by video, sometimes. The Illinois Supreme Court does not allow television in trial courts, but has now explicitly enacted a rule that will sometimes allow use of witness testimony shown by streaming feed from a remote location. Set out below are key excerpts from an article by Patrick Yeagle in the Chicago Daily Law Bulletin.

By Patrick Yeagle

Law Bulletin staff writer


SPRINGFIELD — A new Illinois Supreme Court rule now allows live video testimony in civil cases.

On Tuesday, the court announced this rule and another new rule to keep Social Security numbers out of future court documents.

Effective immediately, Illinois courts may allow video streaming of live witness testimony in civil cases under the newly-enacted Rule 241.

The rule stipulates video testimony may be allowed "for good cause shown in compelling circumstances and upon appropriate safeguards."

Attorney Robert A. Clifford, president of The Chicago Bar Association, said courts still prefer in-person testimony, but video testimony can provide input from witnesses who may otherwise not be able to testify.

"You can have an expert sitting in Manhattan or Los Angeles and present them live on a screen," Clifford said.

Video testimony has been used before in Illinois courts, Clifford said, but there was no rule specifically allowing it until now.

"To the extent that it’s been done in the past, it was at the agreement of the parties," Clifford said. "Modern trials are going to change and you’re going to see more and more of this as time goes on."

Anne M. Oldenburg, president of the Illinois Association of Defense Trial Counsel, said the new rule may make it difficult for juries to determine the credibility of a witness.

"I think there’s something more you can gain by seeing a witness; see them walk into a courtroom, see them interact with attorneys," Oldenburg said. "That might give you more of an ability to assess credibility."

She said video conferencing is already used extensively in discovery for civil trials, as well as in civil cases in other states.

"They supposedly have statistics documenting that this will decrease costs and decrease time of trial, so from that perspective, it’s a good thing," she said. "But I think it needs to be used carefully. I think the discretion of the judge will be key."

Jerry A. Latherow, president of the Illinois Trial Lawyers Association, said witness credibility shouldn’t be a concern.

"We judge the credibility of people we see on the news all the time, so I don’t see that as being a problem," Latherow said. "This gives the trier of fact better evidence and puts them in a better position to decide the case."

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The new rule is posted online here. The same text is pasted below:

Rule 241. Use of Video Conference Technology in Civil Cases

The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.

Adopted October 4, 2011, effective immediately.

Committee Comments

The presentation of live testimony in court remains of utmost importance. As such, showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but is able to testify from a remote location. Advance notice should be given to all parties of foreseeable circumstances that may lead the proponent to offer testimony by contemporaneous transmission.

Good cause and compelling circumstances may be established if all parties agree that testimony should be presented by contemporaneous transmission; however, the court is not bound by a stipulation and can insist on live testimony.

Adequate safeguards are necessary to ensure accurate identification of the witness and protect against influences by persons present with the witness. Accurate transmission must also be assured

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Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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