October 07, 2020 Practice Points

Avoiding Virtual Deposition Disasters

Ensuring your remote depositions are as effective as face-to-face.

By Stephanie Richards

Deposing a witness via Zoom, WebEx, or Microsoft Teams comes with a unique set of hurdles. Virtual depositions pose issues that are atypical to face-to-face discovery. Below is a list of pitfalls and how to prevent them.

  • Lagging Internet. Not only does a poor internet connection make it difficult to understand the attorney, but the court reporter is unable to ensure a clean record when there are issues with buffering. While not completely avoidable, each party—deponent, attorneys, and the court reporter—should have hard wired internet. This could be as simple as plugging in to ethernet. If you’re still having problems, now may be a good time to renegotiate with your internet provider!

    If your client is being deposed, consider doing a test run to problem-solve issues like where the deponent should go if his house is in the country or otherwise has poor internet access. If he’s able to be in his house, he should find a place with good lighting and a steady surface nearby to place the computer. Take a look at his background; does it display anything about his personality or family life that you don’t want revealed? For instance, if he’s a personal injury claimant, you probably don’t want pictures in the background of him crossing a marathon finish line! Remember that these videos may be played in court someday months or years from now—think of all the ways opposing counsel will try to manipulate the narrative.
  • Mistaken Exhibits. It is critical that attorneys verbally ensure everyone is on the same “page” regarding which exhibits are going to be used in the deposition. In face-to-face settings, the attorney taking the deposition typically provides everyone with a hard copy of exhibits. Virtual depositions should be no exception. Ensure you send hard copies of the exhibits to each party immediately prior to the time set for the deposition. If you are concerned about showing your hand with your exhibit selection, you can send in a sealed envelope and have the deponent open the envelope on record.

    To avoid awkward pauses or confusion, fine tune your skills on your virtual platform of choice. Most virtual platforms allow you to make use of screen sharing, which the attorney can manipulate to ensure she gets the most out of working with the exhibit. Familiarizing yourself with the tools available will also prevent a potential inadvertent disclosure. Make sure your desktop does not have saved files or other documents which could affect the case or leak other firm client information.
  • Basic Logistics. Most platforms require a single host, so coordinate with the court reporter and opposing counsel to ensure someone is up for this task. This is also a good time to ensure the host is familiar with the technology and can give the proper permissions to each party to utilize the tools available, such as screen sharing. Consider working with a remote deposition service if you are not particularly tech savvy.
  • Assessing Credibility. Most depositions are designed as a tool to assess the deponent’s credibility as a witness. This is one of the biggest challenges posed by virtual depositions. It may be helpful to ensure that the deponent and the opposing counsel are both on their own cameras to give you a better view. Another way to overcome the challenge is to spend a little more time on the front-end strategizing and preparing. Memorizing your questions frees you from having to refer to an outline, so can give you the ability to observe the witness’s reactions and responses more closely. And, even if you’re a seasoned deposition taker, the virtual angle throws a whole new set of problems into the mix, so some additional prep time is probably appropriate for the first few virtual depositions.

 

Remember, once you have mastered the art of the virtual deposition, this can be a cost-effective alternative for clients. Virtual depositions cut out commute time without compromising the deposition’s effectiveness. Some planning and skill development can make this a great tool in your litigation toolkit.

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Stephanie Richards

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Stephanie Richards is an attorney at Goosmann Law Firm in Omaha, Nebraska. 


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