De bene esse depositions12/16/2023 ![]() Thus, if a physician or expert’s availability for trial is questionable, a prudent litigator may seek to conduct a video deposition of that expert prior to trial in case the physician or expert is ultimately unable to testify at trial. In other words, provided that the requirements of Rule 4:14-9 are met, a party can present the video-recorded deposition testimony of a treating physician or expert at trial in lieu of live testimony. “ n audiovisually-recorded deposition of a treating physician or expert witness, which has been taken in accordance with these rules, may be used at trial in lieu of testimony whether or not such witness is available to testify and provided further that the party who has taken the deposition has produced the witness for further audiovisually-recorded deposition necessitated by discovery completed following the original deposition or for other good cause.” To help address these potential difficulties in presenting medical and expert testimony at trial, in 1980, the New Jersey Supreme Court enacted New Jersey Court Rule 4:14-9 ( Audiovisual Recording of Depositions), which allows for de bene esse video-taped depositions of treating physicians and experts whether or not they are within the jurisdiction. Nonetheless, due to a variety of reasons (costs, employment obligations of the expert, refusal of expert to travel to trial, expert having to testify at another trial at the same time, etc.), litigants might face substantial obstacles in securing an expert’s appearance at trial even though that expert might not be considered “unavailable” under New Jersey’s Rule of Evidence 804. Parties are required to exercise due diligence to secure the appearance of the treating physician or expert witness at trial. Under New Jersey Court Rules and Rules of Evidence, however, treating physicians or expert witnesses are not considered unavailable “ simply because they are not subject to service of process” or because the court cannot compel their attendance. Nonetheless, a video deposition may allow the attorney to present such testimony more smoothly and compellingly. Generally, deposition testimony of an unavailable witness need not be video recorded in order for the testimony to be presented at trial-an attorney can read the testimony from a transcript of the deposition. ![]() One potential benefit to conducting a video deposition is that under New Jersey’s Rules of Evidence 804(b)(1), when a witness is deemed unavailable, prior deposition testimony may be used during trial. ![]() As discussed in an earlier blog, video depositions of a deponent’s testimony can provide many benefits.
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