If there is one thing we can all agree on, it is that COVID-19 has changed the way we live and work. With the virus continuing to spread throughout the country, our new way of life is appearing as if it will remain for the indefinite future. For practicing lawyers, court and office closures have meant that remote working is the “new normal”. Deposition practice, in particular, has forced attorneys into the director’s chair more than ever before. Below, I offer five practice pointers that I have learned from my recent experiences directing remote deposition practice.
- Setting the Stage: Planning ahead is the best way to ensure a smooth, seamless deposition. Consider what technology you will use and know how to use it. However, you are only one end of the line. It is equally important that the deponent and their counsel, as well as the court reporter, know how to use the technology. Consider establishing a time for all parties to confer before the deposition to discuss the use of technology – from sharing and marking documents or exhibits to how counsel will make objections while avoiding the “multi microphone” echo – taking some dedicated time to get on the same page will lessen any headaches during the deposition.
- The Stage as Setting: One of the most obvious changes to remote deposition practice is that the questioner is not in the same room as the deponent. This opens the door for shifty behavior and mistrust between the litigants and counsel about what might be going on “behind the scenes”. Examining counsel should seek agreement that any counsel attending the deposition in the same room as the deponent be on camera during the entirety of the deposition. Examining counsel should inquire as to the layout of the room and the location of the witness relative to defending counsel. At the beginning of any deposition, examining counsel should not forget to ask what documents the witness has with them in the room and secure an agreement that any document the witness intends to look at or rely upon during the deposition be marked as an exhibit and shared with examining counsel. Documents for which a privilege is asserted should be identified in accordance with Federal Rule of Civil Procedure 26 (the party asserting privilege is required to “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim”) or analogous state rules. If possible, have the deponent angle the video camera so that examining counsel can see if the witness has any documents before them during questioning.
- Know Your Props: Knowing how to share documents from your remote video application is the most basic step an examining counsel should take but there are other considerations that should be made to improve your efficiency. Prior to the deposition, assemble your documents in a location that are easy to access. Close down applications and open windows that you do not need. Consider setting “bookmarks” within your document so you can easily flip between only the pages you want to show (and avoid time with continuous scrolling). Consider what file format is best for your intended use. Do you want the witness to read a document? A PDF viewer with highlighting function may be your best tool. Do you want a witness to mark a document? Consider using a graphics application like Microsoft Paint 3D or an equivalent. Don’t forget to mark altered versions of documents as separate exhibits!
- Consider Your Audience: Your audience in a remote deposition is twofold: the deponent and the jury. When planning for use of documentary exhibits during a remote deposition, first consider the immediate experience of the deponent. By way of example, in a recent deposition I was in, questioning about an important document went off the rails when it was revealed that the deponent was using an iPhone and not a computer and could not see the document in enough detail to make it legible. The fail-safe method of ensuring your exhibits are visible and legible to a deponent is to provide paper copies of the exhibit in advance of the deposition. While there is a risk that defending counsel and the deponent can plan for your questioning in advance, the inability to use the exhibit at all is usually a worse alternative. The examining attorney should also maintain remote control of the document itself to ensure that the witness is focusing on exactly what examining counsel wants them to see. Of course, be very clear in describing for the record what specifically is being shown to the deponent (for example, “I am now zooming in on the box in the lower left hand corner of page 2… do you agree that that box contains your signature… I am now going to place a red X to the left of your signature… do you agree that I placed a red X to the left of your signature”). Lastly, make sure your court reporter is in the virtual “room” – a lesson recently learned following a break in a recent deposition I attended, when the questioning inadvertently commenced without the stenographer!
- Avoid Bootlegging: In the classic 1996 episode of Seinfeld “The Little Kicks”, Jerry is inadvertently forced to videotape a bootleg film in the movie theatre, much to his discomfort. With the ease of hitting the record button in videoconferencing applications, don’t be Jerry. Take the time to discuss with opposing counsel whether there is a reason to record the videoconference. Be clear on the expectations of the parties as to the use of that video beyond the mere taking of the deposition, particularly at trial. If your intent is to allow use of that recording at trial, be sure to review and follow your jurisdiction’s rules for doing so, which may require very specific procedures.
With proper planning and proper practice, you can prevent turning your performance into a production. By sticking to the above script, remote video depositions can be as efficient and simple as live attendance.
CMBG3 Law’s attorneys are experts in litigation and trial practice. Our nimble team of lawyers and paraprofessionals have easily adapted to the “new normal” and remain ready to help you obtain win your lawsuit, even during these challenging times. To learn more about how we can help you, contact Attorney Eric Robbie at 617-279-8209 or by email.