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November 24, 2021 Feature

Conducting (and Defending) Virtual Depositions of Expert Witnesses

By Kenneth J. Duvall
Depositions can be conducted as effectively—and much more cheaply—via videoconference as compared to “old-fashioned” in-person depositions.

Depositions can be conducted as effectively—and much more cheaply—via videoconference as compared to “old-fashioned” in-person depositions.

Luis Alvarez / DigitalVision via Getty Images

Like it or not, virtual depositions are here to stay. Or at least that seems to be the broad consensus. Cost-conscious clients now know that (at least some) depositions can be conducted as effectively—and much more cheaply—via videoconference as compared to “old-fashioned” in-person depositions.

Granted, there might always be a place for in-person depositions if the stakes are high enough and a pandemic is not raging. But practitioners should get used to virtual (or remote) depositions if they have not done so already. That being the case, let us focus on what this means for one particular type of witness: experts.

Although some experts might warrant in-person examination, not all of them will. And even if you and your client both prefer to conduct a particular deposition in person, you might not have the final say, especially if your trial judge insists on keeping discovery moving but the other side raises valid concerns about health and safety. This article will examine the ins and outs of taking and defending expert depositions in the new environment.

Make Sure Your Expert Is Not an Amateur When It Comes to Videoconferencing

Everyone knows that expert witnesses need to be prepared for both the substance of the questions and the unique Q&A that is a deposition. But in this new age of virtual depositions, witnesses need to be familiar with the technology, too. Do not assume that your expert will be familiar with the court reporter’s platform simply because the expert is a “professional” witness. Even if your expert has some remote depositions under their belt already, familiarity with one platform does not necessarily translate to another platform. Amid the pandemic, some people have become Zoomers, while others prefer WebEx, and still others Teams (the list goes on). In short, make sure your expert has basic technological proficiency with the chosen platform so that they are not distracted or confused on “game day.”

Your expert witnesses also should be held to a higher standard of preparation and professionalism at depositions than fact witnesses. Of course, you should prepare all of your witnesses as much as possible. But experts are being paid good money to be there, and they should be expected to navigate the technology as well as the court reporters and attorneys. Most experts are not experts in the field of videoconferencing technology, but any professional witness should know how to quickly adjust the video, audio, and other basic settings without help.

If Your Deposition Will Be on Videoconference, Practice on Videoconference

As part of the seasoning process, be sure to practice your mock depositions on videoconference. It makes little sense to practice questions via telephone when you could run a much more realistic simulation. Though a purely telephonic practice session can cover the substance of the questioning, the other aspects of a videoconference deposition should be experienced first-hand.

These unique aspects include viewing and using virtual exhibits. Learning how to view, manipulate, and toggle between exhibits is key, especially for an expert who might be asked to review voluminous and dense documents, charts, and spreadsheets.

Another aspect that takes practice is learning out to tune out the distractions from the other “talking heads” on the screen. An expert witness should ignore everyone but the examining attorney and their defending attorney. No one else (besides the court reporter and videographer) should be talking, of course, but other faces might appear on-screen. Pay them no mind.

Yet another unique aspect to the world of videoconference depositions are the unpredictable, but seemingly inevitable, time lags and other technical snafus resulting from imperfect internet connectivity. Though you might not be able to plan a Wi-Fi breakdown, you and your witness likely will encounter a snafu if you practice often and long enough. Habituating your witness to the unexpected will reduce the likelihood of a flustered expert during crunch time.

Although this advice might go for any witnesses, you might have limited to no control over other witnesses in the case. But your experts are being paid good money by your client, and they should make good on that investment by putting in sufficient prep time.

Using and Digesting Exhibits

Special mention is merited for the treatment of documents at an expert deposition. Sometimes it is to the advantage of the examining attorney to grill the opposing expert without giving the expert the crutch of their own reports and underlying materials. But at other times, it is necessary to use documents to control the expert, impeach the expert, or simply understand the expert’s opinion on a technical topic.

Both the examining and defending attorneys should be keenly interested in a protocol governing the form of and procedure for using documents. If the expert is old-school and prefers hard copies of documents, the defending attorney might insist that the examining attorney ship hard copies of the exhibits ahead of the deposition. Conversely, the examining attorney likely has an interest in keeping the deponent focused on the electronic copies of the documents that appear on-screen if only to save time.

Even more importantly, the examining attorney should seek to preserve the right to use documents that were not shipped in hard copy form ahead of the deposition. Sometimes, an associate finds an important document shortly before the deposition begins. That scenario is not a problem when the deposition is in-person and the documents are not shipped in advance of the deposition; indeed, the witness and defending counsel cannot tell which exhibit, if any, was added at the eleventh hour.

But if a remote deposition protocol includes a deadline for shipping documents, examining counsel would be wise to include a safety valve allowing the use of documents that were not shipped. By the same token, defending counsel should put parameters on that safety valve, perhaps including restrictions on the length of such documents or an admonishment that the witness will need extra time on the record to review such documents in the absence of a hard copy.

One particularly sticky point can arise when the attorney or expert marks an exhibit. This situation might be relatively rare, but if it happens, you need to be sure that the markings are saved in the official record of the case. One means of capturing the markings is to direct the videographer or court reporter to save the marked version as the official record. Another means is ensuring that the video of the deposition includes not only the witness’ face but also any exhibits being shown to the witness.

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By Kenneth J. Duvall

Kenneth Duvall is a partner at Bilzin Sumberg Baena Price & Axelrod LLP in Miami, Florida. Kenneth’s practice has focused on commercial, product liability, and financial services disputes.