The coronavirus pandemic has dramatically disrupted most aspects of our lives, and civil litigation is no exception. One of the most considerable changes has been the move to virtual depositions. Attorneys have had to quickly adjust their techniques and embrace unfamiliar technology, while still taking effective depositions. Below are some pointers to keep in mind.
Be Proficient With The Technology
Taking a remote deposition is fairly straightforward but does require a minimal level of technological competence. Fortunately, the learning curve may be easily overcome with some practice. If you are not familiar with the specific platform your court reporting service uses, make sure to test the technology beforehand. The most common audio-video platforms are Zoom, Cisco Webex, GoToMeeting, Teams and Skype. Many vendors will do a walkthrough before the deposition. However, during the deposition, remember that the court reporter is not your IT person.
Test your internet connection, microphone and camera. Consider connecting to the audio feed by telephone rather than computer audio for clearer sound and to avoid disturbances caused by internet bandwidth issues.
If you are video recording the deposition, make sure the video will focus on the witness. While most videoconferencing platforms include a “record” feature, typically this will merely record the screen as you see it on your computer — including you, the court reporter and opposing counsel.
Exhibit presentation is the trickiest part of a virtual deposition. Even the most tech-savvy practitioners may struggle if they are not prepared. How you choose to share your exhibits depends on the number of exhibits and your level of technological proficiency. Whichever option you choose, know how to use it smoothly and efficiently.
One option is to pre-deliver exhibits to opposing counsel. This method works especially well one-page documents and photographs. The downside to this method is the other attorney will have an opportunity to examine your exhibits ahead of time. If the element of surprise is important, consider sending the depositions right before the deposition, or including multiple exhibits you don’t intend to use.
A second option is screen share. Pre-mark your exhibits and save them somewhere easily accessible. Pull the exhibit up on your screen, then share your display. This method is cost-effective but does require proficiency with the screen share function. It is not particularly effective with longer exhibits because the witness cannot navigate the document themselves. As a word of caution: if you have several screens open, make sure you share the correct screen. You do not want to accidentally share your outline, attorney notes, or confidential information.
Another very effective option is using a specific exhibit-sharing program through your court reporting service. Common examples include Veritext Exhibit Share, and RemoteDepo and InstantExhibit+ from U.S. Legal. These programs offer special features such as automatically adding exhibit stickers, allowing a witness and counsel to annotate or highlight an exhibit, and letting each participant independently scroll through the document.
Safeguard Against Undue Witness Communications
One concern with virtual depositions is that the witness may refer to materials outside the deposition, or communicate with opposing counsel or another outside party through text or email during the deposition. Worse yet, a witness may have someone in the room coaching them. Asking the witness questions at the beginning of the deposition will ensure the integrity of their testimony.
Ask whether there is anything visible in their immediate environment or on their monitor that they may refer to during the deposition. If at any time they review documents or notes while on the record, request that they identify, preserve, and disclose the documents or notes to all parties.
Ask the witness whether anyone else is in the room, and request that they tell you if someone else enters the room.
Ask the witness to agree there will be no unrecorded conversations between the witness and any counsel or outside party while on the record (via text, chat, email, or other means not memorialized in the record); if communications are required to determine whether a privilege should be asserted, defense counsel must state their intention on the record before initiating such communication.
Request that any electronic device not necessary for the deposition be put on silent and moved away from the computer.
Hone Your Technique
It may be quite some time before it is safe to gather with numerous individuals who have traveled from multiple locations in a small space for in-person depositions.
Even after the pandemic has subsided, clients may encourage attorneys to take virtual depositions as a cost-saving measure, especially in light of the dramatic advancements in technology which have made virtual depositions much easier. Embrace this opportunity to learn how to successfully depose witnesses remotely.
— Jaclyn Laferriere is an associate attorney at Hall & Evans. She can be contacted at [email protected]