Depositions in a Post Covid-19 World
Covid-19 has forced the law to join the rest of the world in the 21st century. It has become increasingly common to hold depositions remotely by zoom, ring central, and other video conference platforms. How can you prepare for a deposition when the attorneys, the witness, and the court reporter won’t even be in the same room?
The best thing about remote depositions is the time and expense saved on travel. Attorneys no longer have to drive or fly to the deposition site. Attorneys and parties can simply open a video link and join the conference like any other meeting. Clients will appreciate the savings on billing time and travel expenses that come with reduced travel. Witnesses will save similar expenses and will probably be more comfortable in their own locations.
Discovery disputes may also be resolved faster. If a discovery referee’s presence becomes necessary, the referee can simply join the call at the appropriate time instead of having to travel and sit in the entire proceeding.
Lack of Control
Zoom depositions breed more chaos, or least more potential for chaos, than a live deposition. Deposing attorneys cannot see what else is in the room with the witness. It is a good idea to obtain a stipulation that the witness will not look at their phone or read any e-mails, text messages, or other forms of communication during the deposition. It is also advisable to clear the room with the witness (other than the witness’s attorney).
Similarly, the defending attorney cannot fully communicate with his or her client. It’s more difficult to determine if the witness is tired or uncomfortable. Background noise and/or interruptions may also become an issue if the parties do not choose their deposition location carefully or if privacy is difficult to achieve. For instance, young parents will need frequent breaks to monitor their children.
Technology Is Not Equal
Ideally, everyone present at a remote deposition should have decent web camera and a solid internet connection. Reality is often different from expectations. A witness might only have a cell phone. Counsel might be working from home and sharing their Wi-Fi with a spouse who also has have an important business meeting on zoom at the same time. A plaintiff might be too poor to have a working web camera.
Working with and anticipating the limitation of technology is critical. Join the deposition’s audio by phone if you’ve experienced internet issues before. Some court reporters offer “real-time transcripts” where you can see the transcript as the court reporter is typing each and every word. A real-time transcript can be streamline a deposition if your video feed cuts off at random times.
On rare occasions, an attorney might share a laptop or a computer with his or her client. This might occur because the witness might not have or be able to afford the right equipment. In these instances, deposing counsel should closely monitor where the witness is looking to ensure that the witness is not being coached.
Most video platforms today permit users to share screens. This is a useful function to keep everyone on the same page. However, not all video platforms have such an option and not all parties have the capacity to view documents on their devices. It is therefore recommended that deposing attorneys share their exhibits within 24 hours of the deposition. Although “surprise” may be lost, most exhibits will have been shared in discovery prior to the deposition anyway.
Do I Need an Attorney for My Deposition?
If you are subpoenaed for a deposition, it is strongly recommended that you contact an attorney. The questioning lawyer may not be on your side, and it is important for someone to be at the deposition that is looking out for your interests. Only an attorney will be able to adequately prepare you for a deposition and help protect your rights.