Remote Depositions in the Post-Covid-19 World

Islam m. Ahmad | Wilke Fleury

Remote Depositions in the Post-COVID-19 World

Despite the easing of COVID-19 restrictions in California, many of the changes imposed on the legal industry by the pandemic will likely remain in effect for the foreseeable future. One major change for litigators has been conducting depositions remotely. This change takes an already intricate task and makes it further complex by adding a new dimension of factors to consider. It is imperative that litigators understand these factors to avoid giving their opposition an undue advantage and to maximize the utility of depositions. While we may disagree as to whether remote depositions are a welcome change, the fact of the matter is that lawyers must adapt to them and provide adequate legal representation. This article explores some of the challenges and opportunities presented by remote depositions.

  1. The Deponent

The deponent is the single most important element of any deposition and handing it properly becomes even more delicate in remote settings. I recently took a deposition where the plaintiff met their attorney for the first time at their deposition. The result was not spectacular. The plaintiff was ill-prepared, and the case eventually settled for far less than what it might have if it had been better prepared.

In some cases, deponents testify remotely without their attorneys’ physical presence. This may make them feel less protected and more vulnerable. To manage this risk, additional preparation is necessary. On the other hand, for attorneys taking depositions, this presents an opportunity to elicit testimony otherwise not possible, especially if a defending attorney is distracted in their home or office during long depositions.

Remote depositions require attorneys to be especially vigilant to safeguard against improper influence. The risk of information being conveyed to the deponent by their attorney or others is increased when the deponent is miles away from the attorneys with unlimited access to technology. Attorneys must be innovative and attentive to manage this risk. Steps that can be taken include having the deponent sit alone in a closed room, viewing a 360-degree angle of the deponent’s room before the deposition, and requesting that the deponent’s hands be in clear view of the camera during the deposition.

  1. Preparation

The margin for error is even smaller when preparing for remote depositions. Exhibits must be well-prepared, pre-marked, and, in some instances, sent to the other parties in advance. As such, early preparation is not an option. Attorneys must be strategic in determining how and when they share the exhibits with the other parties. During the deposition, attorneys must be able to seamlessly electronically shuffle between exhibits and share them instantly without creating gaps in the record or interrupting the flow of questioning. For that reason, attorneys must be organized, and their questions must be presented with aforethought.

Further, adequate preparation is required to arrange the technological logistics of remote depositions. This includes securing a strong stable internet connection, operational microphones and speakers, and a quiet room with adequate acoustics. Finally, attorneys must be comfortable with using videoconference software, including filters, screen share, and mute functions to avoid unpleasant situations.

  1. The “Set-Up”

For the attorney taking a remote deposition, it is crucial to arrange it in a manner that ensures command over the proceeding. It is wise to select a court reporter with whom they are comfortable and with whom they have worked in the past. Additionally, it is essential that the court reporter be comfortable working remotely, is familiar with the remote swearing-in process, and is capable of handling electronic documents. Even if all the other parties attend remotely, it is a good idea for the attorney taking the deposition to arrange for the court reporter to be physically present in the same room. This will allow the court reporter to focus on their job and the attorney to maintain command.

In cases where an interpreter is required, an additional layer of complexity is added. It is generally insufficient to have just one connection established with the deponent when an interpreter is utilized. This is because having only one connection means that the interpreter must first listen to the question or answer, write it down, and – only after the person finishes talking – will they be able to interpret. This is a slow, inefficient process. On the other hand, when a second, separate connection is established between the deponent and interpreter, the interpreter will be able to simultaneously translate and relay questions and answers as the parties speak.

There is little doubt that remote depositions are more time-efficient and convenient than in-person depositions. This, combined with the ongoing risk presented by new variants of COVID-19 suggests that remote depositions are likely to remain a key part of litigation practice well into the future. Rather than resist change, attorneys must adapt to this new world and focus on how they can use new technologies for the benefit of their clients, which is the ultimate goal.

Virtual Depositions are as Easy as One, Two… Can You Hear Me, Now?

Michelle Ronan | Jaburg Wilk

For cost containment – or other reasons – attorneys are trying fewer civil cases to juries. Years ago, trial attorneys would easily try dozens of cases per year. Now, it is not uncommon for a “trial attorney” to try one or two cases per year. For good or bad, the nature of civil practice has shifted and discovery, particularly depositions, has, in many ways, become the trial. Attorneys now invest hours into their deposition strategy – what witnesses they will depose and in what order, whether to impeach the witness during the deposition or save it for trial, or to what extent they should question their own witnesses.

When the pandemic caused shelter in place orders and many employers shifted to remote work models, how that affected the courts, clients, and attorneys was, at first, chaotic. We fairly quickly adapted and adopted video conferencing as our replacement for in-person communications, including depositions.

However, that created many questions relative to virtual depositions. Are they as effective as in-person depositions? Does an attorney, and therefore their client, lose the element of surprise when forced to identify the exhibits before the deposition? What steps do you take to virtually prepare your witness?

Fortunately, we are all learning, adapting, and getting answers to these questions. With each deposition we conduct and every witness we prepare, we improve ourselves and the process. Here are five tips I use to not only survive but also thrive, when I virtually prepare for and take virtual video depositions:

1. Patience 

No matter what type of case you are handling, when it is time to prepare your witness or conduct a virtual deposition, bring a lot of patience.

2. Break It Up 

One of the benefits of virtual deposition preparation is that the attorney no longer has to fly to the out-of-state deponent and cram all the deposition preparation into a single day. Breaking up the preparation sessions into smaller sessions over several days will help your witnesses stay fresh and be able to process what you tell them more effectively.

3. Use the Technology 

The technology may be complicated but spend the time learning it, and then use it! Most video conferencing platforms have a “Share Screen” feature. This feature allows you and your witness to examine a document as if you were in person. Also, don’t forget about the record feature which allows you to record a mock deposition and play it back to the witness as you critique her presentation. Depending on your local rules, the record feature may also provide you with a more affordable option for recording the deposition for use at trial.

4. Make the Witness Work 

It is easier for a witness to tune you out when you are talking over a screen than if you were talking to them in person. Be mindful that while you may have done everything to reduce the distractions around you, the witness may be bombarded with distractions you may not see or hear. One way to keep the witness engaged is to make her do the work. Make her read the document. Make her tell the story. Make her use the technology.

5. Get Creative 

Often it is too costly to fly two attorneys across the country to prepare a witness. However, if you can conduct the depositions remotely, why not engage the rest of your team to help prep the witness? Have another attorney log in for an hour and conduct a mock deposition. Have a fresh pair of eyes and ears look at and listen to the witness to help you evaluate their quality as a witness.

Virtual depositions, remote working, and less in-person meetings are likely here to stay. Mastering new techniques and embracing new processes are necessities in the virtual legal world. Just like trying anything new, be patient with yourself, be open to learning, and incorporate the challenge of navigating in this new virtual legal world as part of your career development plan.