In the real world there are few opportunities to truly redo something. In baseball, batters can't get a fourth strike just because they missed the last pitch and struck out. So why in New Jersey civil courtrooms, when stakes are so high, should attorneys who have declared their expert witnesses "unavailable" to testify live at trial, with no affidavit explaining why they cannot appear required, be allowed to suddenly change their mind and produce the expert witness in the courtroom, with no questions asked? Not only does this practice allow for gamesmanship, the issue becomes of even greater concern when, without anyone asking questions, the witness is suddenly capable of testifying "live" in front of the jury. This is especially true in the area of medical malpractice. So, if no one else raises the question, let me. It seems the answer is simple: A change in the rules for video de bene esse testimony and it's needed today more than ever before.

Before delving into the legalese of this fancy Latin term, let's walk through how this rule may play out in the real world. After a lawsuit is filed, preparations are underway for trial. Most importantly a phase of discovery is shared and depositions are taken. Legal theories and strategy are planned by attorneys for both parties. For example, at some point in a medical malpractice case, an attorney will produce an expert witness who opines under oath as to the medical errors in the case. During this sworn deposition, questions may be asked about the expert's written opinion and basis of the conclusion rendered. There are times when an attorney will simply state an expert is "unavailable" to testify "live" at trial, without any explanation. That's when the court allows this expert witness to provide a de bene esse deposition on video for both their direct and cross examination testimony. This procedure is governed by Rules 4:14-9(e) and 4:16-1(c), and this sworn evidence is taken outside of the courtroom and done before the trial even starts.