I always loved the movie Zenon: Girl of the 21st Century. It followed the antics of a teenager living on a space station in the year 2049. I remember being amazed at the technological advances the movie portrayed. Now, here we are in 2020, and we still do not use flying cars or live in outer space, but technology has advanced a lot since the movie’s release in 1999.
Though the legal community has seen its fair share of technological advancement over the years, there are still some ways that we prefer to lawyer “the old fashioned way.” One primary example of where this practice holds true is depositions. Even though the ability to take video depositions has existed for some time now, many lawyers are still hesitant to do so. And there are many good reasons behind this: fear of technology not working or questions not coming across clearly, inability to develop the same rhythm and rapport with the witness, diminished ability to analyze body language and mannerisms, and of course losing the strategic advantage of being able to look them in the eye when asking questions under oath.
But regardless of these concerns, remote depositions may soon become our new normal. Due to the novel coronavirus pandemic, in-person interaction is limited and may remain so for the foreseeable future. It may not be safe to have multiple attorneys, a court reporter, and a videographer sitting in a room with a witness for quite some time. And even when it is safe to do so, we may see a shift in client expectations to remote depositions as a cost-saving measure.
Whether you think remote depositions are a good or bad thing for your clients, your personal lawyering style, or your industry, it is a reality we will all be facing. The best thing we can do now is prepare to adapt our deposition style to accommodate questioning or defending a witness in a virtual setting. Here are some tips to keep in mind as you adapt to these changes:
- Practice makes perfect. Do not underestimate how much time it will take you to get comfortable using whatever system you are utilizing. Do several test runs—make sure your microphone and camera are working properly, the lighting in your “home office” presents well on video, and you know who to call if you have technological issues mid-deposition.
- Develop a clear plan. Deposition preparation will look different. Although depositions will always require some flexibility and ability to go off-script, with remote depositions it is even more important to have a clear plan in place for your approach and scope.
- Think about evidentiary objections ahead of time. Try to establish your response through your questions. You may only get one shot and do not want to miss your opportunity.
- Prepare your exhibits ahead of time. You will need to be able to send these in advance to the court reporter. You will also need to practice sharing your screen to display an exhibit if needed.
- Ask clear and concise questions. Easy to understand questions will be more important than ever.
- Achieve critical, trial-level testimony. The days of “saving questions for trial” may be gone. When you are questioning a witness in a remote setting, it might be your only chance to get critical testimony you need to prove or defend your case. Have a thoughtful and well-prepared approach.
- Research swearing in of witnesses. Learn the rules in the jurisdiction about swearing in witnesses ahead of time—this could end up being a big issue depending on what court you are practicing in. Some court reporters will not swear in a witness if they cannot do so in person.
- Ensure high quality technology. Ask the court reporter service you use to provide the witness with an HD quality video camera and maybe even a screen for the witness to set up behind them.
- Negotiate certain procedures in advance. Establish an agreed protocol with opposing counsel ahead of time, particularly for the handling of exhibits.
- Protect your client. If you feel that the use of the remote technology is prejudicial to your client, make the objection before you go off the record and reserve the right to another deposition at a later date if necessary.
If you take heed to these tips, you will hopefully not find yourself overwhelmed and exclaiming “Zetus Lapetus!” at your next remote deposition.