December 15, 2020 Practice Points

Five Tips for the Brave New World of Virtual Depositions and Trials

The legal profession has been forced to evolve to gathering and presenting evidence virtually, requiring practitioners to modify their skills and strategy accordingly.

By Jennifer Axel

The bedrock of the common law for over a millennium has been in-person hearings in front of a judge or jury. With COVID-19, that is all changing, as the legal profession must adapt to maintain the safety of attorneys, clients, judges, and juries.

Although virtual (or remote) depositions were occurring prior to COVID-19, they have become the norm since March 2020, and the days of clients paying attorneys to travel for many depositions may become a thing of the past. Virtual trials were mostly non-existent, but at least bench trials have become de rigueur. As attorneys’ and clients adapt to these new conditions, new considerations have replaced the old ones:

Protocols

Prior to engaging in virtual depositions or trials, it is important that both sides agree on protocols and technology. For example, ensure that key witnesses have computers with video capabilities and offer to provide them if they do not. Agree on whether attorneys can be in the room with their witnesses for purposes of trial. The parties should also discuss how exhibits will be handled so that there are no surprises or delays.

Separate Audio and Video Components

If possible, separate the video and audio components, i.e. dial-in from a phone for the audio and use your computer for video. If video fails or gets a glitch you will still be connected via phone. Most video platforms have ways for you to log-in to your “box” via phone but make sure to practice because trying to use audio from your computer and phone will lead to feedback and an angry judge.

Practice

Make sure your witnesses are comfortable with the virtual platform—some people may be accustomed to and comfortable with Zoom but not Microsoft Teams—the programs are different, and you do not want your witness trying to figure it out when you are in front of the judge. Witnesses also appear differently on video platforms. Even if your witness is experienced, you need to practice with them in the specific format you are going to use for the deposition or trial to make sure the set-up is right. It is also important that you spend time in advance with your clients in front of the computer, as many witnesses are not used to appearing on screen for many hours at a time, and the tempo of examining witnesses virtually is different than in-person.

Electronic Exhibits

Electronic exhibits can be a challenge on several levels and there are many ways to present them. Some court reporting services offer concierge services that present and manage your exhibits for you. In other cases, the sides agree ahead of time to exchange exhibits. Other times there are certain documents that everyone just needs a paper copy of to avoid games. Consider all potential options in advance. For purposes of trial, especially when you are on a clock, make sure that your exhibits are accessible from your computer and do not give away where you are going in your examination. For example, if you bookmark exhibits in a PDF, do not show the bar with the bookmarks. Know how to operate the share feature on your screen so that you are only broadcasting an exhibit when you are ready.

Staging

Although litigators have historically had a flair for the dramatic, it is now key for attorneys to focus on staging both themselves and witnesses for virtual depositions and trials. Issues like lighting and the position of a camera are now important. If doing a virtual trial, figure out if it is feasible for your team to be together and if so where will your witnesses be. It can be distracting for a witness to be in a room full of lawyers when they are “on the stand” virtually.

Takeaways

The key takeaways we have learned so for are practice, practice, practice for both you and your client and spend the time to think through logistics in ways that we have never had to before COVID-19.

Jennifer Axel is a shareholder with Polsinelli PC in Phoenix, Arizona.


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