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:
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.