Imagine a world where your greatest fears become reality.
You’re in the middle of a deposition, frantically searching for a critical electronic document that’s nowhere to be found on your laptop.
Opposing counsel is cross-examining your client, but the audio is so bad you can’t hear the questions or the client’s answers.
You click the wrong button while searching for a document, inadvertently exposing your entire case file to opposing counsel.
Welcome to Fear Factor: Remote Depositions.
Remote depositions are not new, but they can be scary for some litigators, and until recently, they’ve been viewed as somewhat optional. With the ongoing current coronavirus pandemic, however, many attorneys are viewing remote depositions in a new light. Remote depositions may not be something they’d like to do, but instead something they must do—to effectively serve their clients and to maintain the viability of their law practices.
Fears Surrounding Remote Depositions
Are you, a skilled litigator, haunted by any of these fears?
“I’m not confident that the court reporter will properly swear in the witness and capture all of the testimony if I’m not there.”
Many court reporters are trained in how to swear in a witness remotely. If you have misgivings about the court reporter’s ability to properly swear in the witness, take a moment to ask the reporter about his or her experience conducting remote depositions.
Modern technology supporting remote depositions is secure and reliable. There is no reason for concern that valuable deposition testimony will be lost because the court reporter and deposition witness were not in the same physical location.
“I’m worried that a remote deposition isn’t lawful in my state.”
A remote deposition differs from a video deposition only in the fact that the deposition witness and the court reporter are not in each other’s presence.
At the time of this writing, due to emergency legal procedures created in response to the novel coronavirus pandemic, every state and federal court permits remote swearing-in of witnesses and remote notarization.
There is no reasonable basis for concern that a remote deposition will not be as lawful as any other form of deposition.
“What if my equipment fails during the deposition?”
Preparation and practice are the attorney’s friends here. Counsel should take the time to determine whether all parties—attorneys, the witness, and any other participants—have the proper equipment and suitable internet bandwidth to conduct a flawless remote deposition, even on a mobile device, in advance of the proceeding.
Residential internet service is often not as robust as business internet service, so special attention should be paid to the witness’s technology setup. It is a good idea for all deposition participants to log into the deposition provider’s network at least 20 minutes in advance to test their equipment and internet speed.
“Managing a remote deposition seems overwhelming. I worry I won’t be able to take notes, highlight key answers, or circle back to important testimony.”
Note-taking can be accomplished with paper or whatever office software is available at the attorney’s firm. There is nothing unique about remote depositions that would prevent counsel from directing the witness’s attention to earlier testimony or having that testimony read back to the witness.
“I worry that I won’t be able to effectively advise and support my witness if we’re not in the same room together.”
Concerns about the witness can be addressed through practice and preparation. Conducting a mock deposition with the same technology that will be used during the actual deposition will go a long way toward instilling confidence in a remote deposition witness.
Prior to the deposition, counsel should make sure that there is an audio communications channel separate from the technology used to record the deposition that will allow counsel to communicate with the litigation team (and the witness, if permissible) during breaks.
“It would be a disaster if I inadvertently lost electronic files or, worse, allowed them to fall into the hands of the opposing party.”
Attorneys have an ethical obligation to be technologically competent and to take reasonable measures to safeguard client information. So, yes, attorneys should worry about mishandling electronic documents.
During a remote deposition, attorneys are 100 percent in control over which documents will be offered as exhibits and which ones will not. Thus, they enjoy the same level of control over which documents will be shared with opposing parties as they have during face-to-face depositions.
Documents intended to be offered as exhibits during a remote deposition can be shared in several ways. They can be emailed to opposing counsel in advance of the deposition, assuming counsel had no reason to withhold the documents until the time of the deposition. During the deposition, documents offered as exhibits can be uploaded to the deposition services provider’s technology platform (services such as Zoom and Webex both have document-sharing capabilities).
It is a good idea to work out in advance how documents will be shared (as well as all other administrative matters) during a remote deposition. Care should be taken to not burden the court reporter with any responsibilities other than creating a verbatim account of the deposition.
The Challenge and Opportunity of Remote Depositions
The suggestion that lawyers “fear” remote depositions is hyperbole, of course. A lawyer’s concern that an important client matter be handled as effectively as possible is entirely rational.
But the fear metaphor is instructive. How is fear conquered? Preparation is a time-tested fear buster. So too is practice.
Remote hearings and depositions will be pervasive in the “new normal” that exists beyond the end of the current coronavirus pandemic. Attorneys who embrace remote technologies now and accept the challenge of expanding their advocacy skill set will undoubtedly serve their clients better this year and in the years to come.