Adjusting the Sails: The Pandemic Effect on Remote Depositions

“We cannot direct the wind, but we can adjust the sails.”
—Attributed to many

Courts around the country are turning to remote trials at various speeds. Some have pivoted very quickly and others are taking it slower. Because many trials have been put on hold, this is the ideal time for attorneys to do depositions. Here are some suggestions.

Set a Course: The Court

Check your court’s website before you even send out a notice for a deposition. Some courts have issued protocols that help attorneys navigate the remote advocacy world. For example, the Hon. Robert W. Lehrburger, U.S. district judge for the Southern District of New York, issued a sample remote deposition protocol that attorneys could adopt or modify as needed. This has been posted on many websites addressing these issues.

What a gift to attorneys to have a federal judge suggest this protocol: “The Parties agree not to challenge the validity of any oath administered by the court reporter, even if the court reporter is not a notary public in the state where the deponent resides.” This alone will save attorneys time and their clients fees by eliminating the need to shop for a different court reporting service in each state.

Judge Lehrburger’s sample protocol makes clear that it is not mandatory but provides options for such things as exchanging exhibits. With the landscape shifting from day to day, it is wise to check whether your court has issued protocols that could help you or are mandatory for you to follow.

Confer with the Navigator: The Court Reporter/Videographer

Just as our world has changed, so has the world of court reporting. A court reporting service that knows how to do remote depositions can help you with things like technology, video, and exchange of exhibits.

Make sure you first confirm with the other side whether the deposition is a video deposition or whether the end product will just be a written transcript. This may seem elementary, but some confusion has arisen. Just because remote depositions can be recorded on whatever platform is used does not automatically turn every deposition into a video deposition. Some states require a certified videographer to participate in order for it to be a video deposition.

However, my suggestion is to treat every deposition as if it were a video deposition. One purpose of every deposition is for counsel to weigh just how good the witness will be for the other side. In addition, counsel is assessing your skill as an advocate. Attorneys make a mistake if they slack off on the visual aspect of a remote deposition. Thinking that it doesn’t matter that much if the end product is just a written transcript is not forward thinking.

You and your client want to put your best foot forward both verbally and visually. If you do have to go to trial, it may be a remote trial, and what better than to practice how do it through the remote deposition?

Turning back to the court reporter, ask to see a copy of what the end product will look like. Go on the company’s website and look at the product it is putting out. Make sure that what you are watching is on the exact platform you will be using.

I just watched a promotional video from a provider that came up near the top on an internet search of re-mote depositions. After viewing its promotional video, I would be upset if my witness looked like either of the two presenters on what should be a showcase piece of great video.

First, neither presenter was looking into the camera. Second, they used a virtual background but had not done the work necessary for the virtual background to work well. I cannot count the number of presentations I have reviewed where the speaker’s hair appeared and disappeared depending on a slight head turn.

Glasses are a particular problem and can result in an eye being replaced by flesh in one of the lenses, and in a particular frightening video, the presenter’s nose kept disappearing only to be replaced by the fake books in the virtual background. Wes Craven would have loved the effect. I feel a real background, as long as some care is taken in the setup, is always better because it is authentic.

Many court reporting services put out checklists and protocols for you to consider. They cover such topics as technology, sharing exhibits, video setup, backgrounds, breakout rooms, and communicating with the witness.

Avoid a Mutiny: Opposing Counsel

We are all in the same boat. To my knowledge, no firm or attorney was well versed in doing everything remotely before the pandemic forced all of us to turn to it.

I would urge you to reach out to opposing counsel sooner rather than later in the case to see if you can agree on some protocols. I urge early contact with counsel before anyone is advantaged or disadvantaged.

Opposing counsel will probably welcome your call. If done professionally, feathers need not be ruffled. A suggested overture might be: “I know you would never do this, nor would I, but let’s discuss putting some protocols in place so we can tell our clients that the same rules will apply to everyone, including independent witnesses.”

It is an unfortunate fact that perhaps most of the protocols are necessary to cover the very small percentage of attorneys or clients who might try to take advantage of the remote world. Some for you to consider:

1. Confirm with the deponent at the beginning and the end of the deposition that he or she has not communicated with anyone during the deposition other than what was allowed by agreement and on the record.
2. Virtual backgrounds hide what else is in the room. If this is a concern, discuss with opposing counsel turning that off to confirm that no one else is in the room. The presence of a videographer or court reporter in the same room as the deponent will discourage shenanigans. Either should state for the record those present before the deposition begins.
3. If you suspect a violation, then state for the record actions you note, such as counsel texting and witnesses looking down and appearing to read. You should also protect yourself and your client from perhaps having to produce your own text messages or emails by turning your phones off on camera to help quell any accusation of coaching.

Drop Anchor: Your Client

Pausing before answering will be the number one task for you to address with your client for a remote deposition. The witness must give you time to object. Other protocols I have heard of are the attorney raising his or her hand on camera to signal that an objection was forthcoming and counsel stipulating that a late objection did not constitute a waiver.

Finally, you must become Spielberg for your client. You must test, test, test with your client on the actual platform you will be using. Witnesses sitting with their back to a window is bad, unless you want them to look like they are on 60 Minutes testifying from the safety of a federal witness protection program.