Deposition is arguably one of the most important skills for a litigator. It is an important tool for gathering information. It is also an important tool for conveying to the opposing side that you are confident and prepared to move your case forward. This month’s advice will focus on how to present yourself and your client at a video deposition; of course, some of these tips transfer nicely to an in-person deposition, should you happen to have one.
Tip 1. Choose a Reliable Presentation Platform
Use a platform that offers high-quality video and audio, as well as features such as screen sharing, chat, and recording. You should also ensure that the platform is secure and compliant with all relevant rules and regulations. In addition to the popular Zoom and Webex videoconference platforms, there are dedicated systems such as eLitigate and vTestify that you may want to check out. In the event the other side or the court reporter selects the platform and you have little or no familiarity with it, take some time and learn it prior to the deposition.
Esquire Deposition Solutions’s eLitigate is an all-in-one videoconferencing, exhibit management, and in-proceeding testimony review platform that allows you to depose witnesses or attend depositions virtually. The exhibit management feature includes exhibit marking and submission distribution. eLitigate also offers non-discoverable sidebar rooms. The system offers proceeding testimony review and audio playback with ScriptSync.
vTestify is a cloud-based platform designed for conducting depositions remotely with features, functions, and security that lawyers and court reporters would want in a deposition platform. This tool combines high-definition videoconferencing, exhibit management, and smart AI tools. Like eLitigate, vTestify features ScriptSync for audio recording and playback. The integrated exhibit management allows attorneys to upload documents privately before and during the proceeding and then share, stamp, and annotate the introduced exhibits directly within the platform.
Tip 2. Prepare Your Witnesses and Exhibits
Make sure that you familiarize your witnesses with the platform and that they will have access to a suitable device, camera, microphone, and Internet connection in an appropriate setting. Review the case facts and themes with your witnesses, instruct them on how to present themselves, and explain the deposition process and rules. Consider practicing with mock questions. Remind your witnesses to tell the truth—it is always the easiest to remember, and lying under oath can have serious legal consequences. Remind them to listen to each question carefully and only respond to that question. Tell them not to answer a question if they do not understand any part of the question. The goal is to give the shortest but most complete truthful answer.
Have the exhibits open and arranged in the order you plan to use them for your examination. If you have outlined your plan for the deposition, you may want to label your exhibits with a number and lettering system that matches your outline. If appropriate, you may want to provide some exhibits in advance to opposing counsel and the witness. On the other hand, you may want to hold back some exhibits if you want to surprise the witness or get an authentic reaction. Make sure you are familiar with the screen-sharing and annotation features of the platform you are using.
Tip 3. Test Your Equipment and Environment
Test your device, camera, microphone, speakers, and Internet connection before the deposition. Conduct one test days before the deposition and conduct another test shortly before the deposition itself. That way, you still have time to remedy the situation if an issue pops up.
Tip 4. Be Prepared for Technical Issues
Despite your best efforts, technical issues may still arise during the deposition. You should have a backup plan in case of any problems, such as having alternative contact information for the parties, having backup devices or Internet sources, or rescheduling the deposition if necessary. If you have Internet or video failures, the easiest solution is to have a call-in option and make sure you and your witnesses have the information on hand to call in if issues arise.
Tip 5. Be Prepared for Objections and Know the Rules
Objections—whether to form, relevance, or privilege—can disrupt the flow of your thought process. Be prepared for them and address them quickly to get back on track. Some objections must be made to be preserved. Don’t be afraid to ask opposing counsel for clarification if you are unsure regarding what is the aspect of your question to which they have objected. However, you should shut down opposing counsel’s “speaking objections.” Many states have rules and statutes providing that an objection made in court or in deposition must be made specifically and concisely rather than in an argumentative or suggestive manner. Objections made in violation of these rules are known as speaking objections. For instance, if a lawyer objects to a question by saying, “Objection, misstates the testimony,” that is an acceptable objection. Unfortunately, it rarely ends there; instead, you get something like, “Objection, misstates the testimony. What the witness said was . . .” This is where you need to cut them off or call attention to it by saying, “Please, no speaking objections.”
Bonus Tip: Review Your Deposition Transcripts to Learn from Your Mistakes
The deposition transcript is a great training tool to hone your skills. The transcript can reveal whether you are undermining your own performance. Verbal tics are one common way this can happen. (Think of the lawyer who prefaces every question with “Okay” or “So . . .”). In addition, rewatching a video deposition allows you to see how your body language, attire, demeanor, and gestures all come together to create your overall presentation.
Depositions are an important part of the discovery phase. How you present yourself and your case can set the tone for the rest of discovery and the trial. With careful planning and practice, you can master this skill. Hopefully, these tips will get you on your way.
Published in GPSolo eReport, Volume 12, Number 10, May 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.