The transition to remote litigation this past year has been jarring for some and a welcome change for many others. Attorneys who relied upon face-to-face interactions as a tactic to move their claims have been forced to pivot into a virtual environment where many traditional litigation skills simply do not translate.
One area in particular that has given me pause is the remote trial arena. The right to in-person testimony has always been paramount in my understanding of due process. And yet, the WCAB has all but completely abandoned the requirement of face-to-face testimony, as was demonstrated in the recent significant panel decision of Gao v. Chevron Corp. (2021) 86 Cal. Comp. Cases 44.
While I understand, and readily embrace, the notion that the law is ever-evolving, part of me remains a fundamentalist. Maybe I'm being a romantic (as much as one can be when talking about workers' compensation practice and procedure), but I think that all parties should be afforded the right to demand that a witness appear physically in front of the judge to state their testimony. In my opinion, the gravity of providing testimony under oath just doesn't seem to translate over the internet, when faced with little more than heads projected on a screen.
The WCAB's transition to remote hearings is not based upon some bureaucratic whimsy, but rather upon the advent of a global pandemic that has cost the lives of hundreds of thousands, and caused fundamental shifts in the behavior of most of the world's population. Due process is the process that is due under the circumstances as we find them, not as we might wish them to be.