4 ms·

Someone got nuked for asking why the court is explicitly not allowing Gabe to wear an n95 mask. I think it's a legit question. Weirdly , it seems to come down

Someone got nuked for asking why the court is explicitly not allowing Gabe to wear an n95 mask. I think it's a legit question. Weirdly , it seems to come down to some belief in the courts that lawyers can determine credibility through some combination of face and body language? I didn't realize courts still believed in that kind of thing, but then again, the notoriously mutable eyewitness testimony is still considered a gold standard for evidence apparently. So first of all, they reject remote because they can't determine credibility over a camera: > While other courts conclude that a deponent’s credibility can be comparably assessed through remote means, see, e.g., Henry v. Tacoma Police Dept., 2023 WL 5530201, slip op. at 3 (W.D. Wash. 2023), this Court is not of that opinion. And in that case, it was believed you can determine credibility better over camera with someone not wearing a mask, than you can with in person but wearing a mask: > attorneys have a better opportunity to observe and assess witnesses who are deposed in person as compared to video depositions—particularly where the witness’ [sic] credibility is an issue.” Dkt. No. 71 at 5. To the extent that statement i s intended to demonstrate prejudice, it fails. To the contrary, “it may be easier for [Defendants] to evaluate the credibility of [a] witness who appears via video conference without a mask than it is to evaluate the credibility of a witness who wears a mask while testifying in person This court decided no to both, they want the lawyers to be able to exercise their superhuman facial tic analysis skills in person and uninhibited apparently.

avar 3y ago
It's an interesting question in general, in particular since there's little distinction between an N95 and Gabe's beard in terms of how much of the underlying face you'd see. But you're leaving out this part, which is quite critical: > In hopes of alleviating Mr. Newell’s health concerns, the Court mandates the following additional health measures: all participants (including questioning counsel) must wear a tightly fitting certified N95, KF94, or KN95 face mask throughout the deposition. At his discretion, Mr. Newell may provide those certified masks to participants. But Mr. Newell shall remove his mask when responding to questions from Plaintiffs’ counsel. I.e. everyone else nearby will be required to wear a mask, and will presumably be far enough away to make COVID-19 transmission unlikely.
- komali2 3y ago
  I left that out without even thinking about it, but it does bear further thought: in my experience, especially in the USA, no matter how explicitly instructions are given for covid precautions, they're largely ignored, or only perfunctory attempts to comply are made, e.g. a mask worn but only covering the mouth, with the nose exposed. So I wonder how well everyone will actually comply with this court order after a few hours of deposition! Your note about his beard is a great example of why it's frankly absurd for a lawyer to claim that they need someone in person, with a mask off, to accurately judge their competency.
  - avar 3y ago
    Well, you can find post-pandemic pictures of Gabe and his comically bad mask fit, given his full face beard. You can also find pictures of him in public without a mask post-pandemic. So I think this was pretty much a transparent "can't I just do this bullshit over Zoom?", which the court saw through. I'm pointing out that they are being accommodating to his concerns, if they're taken at face value. I bet if he requested being wheeled in in an airtight plexiglass phonebooth the court would at least entertain it.
  - johnnyanmac 3y ago
    >So I wonder how well everyone will actually comply with this court order after a few hours of deposition! I mean, if there's any place I would not want to try my luck, it'd be in an airport, and in the courtroom. Easy way to be throw in contempt of court. I wouldn't compare a courtroom to some non-complier in the checkout line.
22c 3y ago
While I don't think that lawyers possess some kind of superhuman "Paul Ekman / Lie To Me" style abilities, I do think that non-verbal communication, including facial expressions, could help to inform a lawyers line of questioning during a deposition. Regarding appearing in person, someone appearing on video call could easily have cue cards off-screen or a team of lawyers giving them thumbs up/thumbs down etc. Doing it this way removes at least some of those doubts surrounding fairness for the plaintiffs.

avar 3y ago

It's an interesting question in general, in particular since there's little distinction between an N95 and Gabe's beard in terms of how much of the underlying face you'd see. But you're leaving out this part, which is quite critical: > In hopes of alleviating Mr. Newell’s health concerns, the Court mandates the following additional health measures: all participants (including questioning counsel) must wear a tightly fitting certified N95, KF94, or KN95 face mask throughout the deposition. At his discretion, Mr. Newell may provide those certified masks to participants. But Mr. Newell shall remove his mask when responding to questions from Plaintiffs’ counsel. I.e. everyone else nearby will be required to wear a mask, and will presumably be far enough away to make COVID-19 transmission unlikely.

komali2 3y ago
I left that out without even thinking about it, but it does bear further thought: in my experience, especially in the USA, no matter how explicitly instructions are given for covid precautions, they're largely ignored, or only perfunctory attempts to comply are made, e.g. a mask worn but only covering the mouth, with the nose exposed. So I wonder how well everyone will actually comply with this court order after a few hours of deposition! Your note about his beard is a great example of why it's frankly absurd for a lawyer to claim that they need someone in person, with a mask off, to accurately judge their competency.
- avar 3y ago
  Well, you can find post-pandemic pictures of Gabe and his comically bad mask fit, given his full face beard. You can also find pictures of him in public without a mask post-pandemic. So I think this was pretty much a transparent "can't I just do this bullshit over Zoom?", which the court saw through. I'm pointing out that they are being accommodating to his concerns, if they're taken at face value. I bet if he requested being wheeled in in an airtight plexiglass phonebooth the court would at least entertain it.
- johnnyanmac 3y ago
  >So I wonder how well everyone will actually comply with this court order after a few hours of deposition! I mean, if there's any place I would not want to try my luck, it'd be in an airport, and in the courtroom. Easy way to be throw in contempt of court. I wouldn't compare a courtroom to some non-complier in the checkout line.

22c 3y ago

While I don't think that lawyers possess some kind of superhuman "Paul Ekman / Lie To Me" style abilities, I do think that non-verbal communication, including facial expressions, could help to inform a lawyers line of questioning during a deposition. Regarding appearing in person, someone appearing on video call could easily have cue cards off-screen or a team of lawyers giving them thumbs up/thumbs down etc. Doing it this way removes at least some of those doubts surrounding fairness for the plaintiffs.