With over 90 percent of the U.S. population under some form of government-mandated closure or social distancing directive, the legal community has been forced to embrace remote proceedings or risk being left behind. In order to move important litigation matters along during the upcoming months, attorneys have no choice but to become adept at remote, technology-enabled hearings and depositions.
However, the idea of not being in the same room with their witness during a deposition is unsettling for some attorneys. Fortunately, these concerns are more apparent than real.
Attention to the following considerations will go a long way toward alleviating an attorney’s concerns about taking, or defending, a remote deposition for the first time.
1. Develop technology competence. More than mere “competence,” in fact. Counsel should develop expertise in using the technology platforms that enable remote depositions. It is important for counsel to know, at the outset, how documents will be shared, marked up, and offered as exhibits during the deposition. Counsel should also be familiar with how each deposition participant will be recorded.
A witness who becomes frustrated or fumbles with technology will not be a compelling witness. It is not realistic to expect the witness to be technologically adept. In most cases, the attorney or a member of the litigation support team will need to train the deposition witness in how to participate in remote proceedings.
2. Know the law. If you have never conducted a videoconference deposition, or a remote deposition, take time now to review the laws in your jurisdiction governing these proceedings. Many states have procedural rules specifically addressing video depositions. Layered on top of these rules are court-ordered rule changes to meet the demands of the coronavirus pandemic.
As a practical matter, all states and the federal court system permit remote depositions at the current time.
Attorneys who are fully versed in the laws applicable to remote depositions will be in the best position to protect their witness.
3. Ensure the witness has a capable internet connection. A deposition is stressful under even the best of circumstances. That stress will be amplified, however, if the witness cannot hear the question being asked. Similarly, a deposition witness can become frustrated by repeated requests to restate testimony for no reason other than that the original answer was not intelligibly transmitted to all parties.
Counsel should familiarize themselves with the minimum bandwidth speeds and device capabilities required by the remote deposition platform they are using. An internet connection adequate for FaceTime or Netflix can buckle under the demands of a remote deposition. Don’t take the witness’s assurances that their internet connection is “good enough” at face value. Test it.
For remote depositions, the minimum technology requirements are:
- Broadband or wireless internet connection (3G, 4G/LTE, 5G preferred)
- Audio speakers (computer built-in speakers, auxiliary speakers, speakerphone from landline, or USB headphones)
- Web camera (computer built-in or separate USB plug-in)
Wired (directly to the router) connections are preferable to wireless connections. Counsel should aim for 5 Mbps (megabits per second) data transmission speed. Bluetooth-connected speakers and cameras are not recommended.
4. Prepare your witness. A witness in a remote deposition may develop feelings of isolation without the assuring presence of legal counsel nearby. These witnesses will benefit from greater-than-usual preparation. Counsel should review with the witness:
- The types of questions likely to be asked during the deposition
- The types of objections commonly raised during depositions, how they will be asserted and resolved
- The availability (or not) of unrecorded sidebar conversations
- The availability of breaks in the event the witness is experiencing fatigue
Prior to the recorded beginning of the deposition, counsel should ensure that they can see the witness at all times. It is also a good idea to tell the witness the expected duration of the deposition. In most cases, a videoconference deposition will take longer than a stenographic deposition.
Mock remote depositions are a good way to ensure that everyone is prepared to excel when deposition day arrives. If at all possible, mock depositions should be conducted with the same technology that will be used in the remote deposition. Attorney and witness will also benefit from rehearsing the speaking cadence typically employed in videoconferenced depositions:
Attorney: Question … (pause) …
Witness: Listen … Understand … (pause) … Answer
Counsel should consider sharing a recording of the mock deposition with the witness and litigation team, if possible and appropriate.
5. Create a record describing the remote environment. In a remote deposition, counsel may not have the ability to personally observe the physical space in which the witness is testifying. Counsel should take precautions to protect his or her client against the possibility that the witness, or opposing counsel, will take unfair advantage of this situation. One such precaution is to have the witness describe in detail, on the record at the beginning of the deposition, the circumstances under which the deposition is being held.
For example, counsel might ask the witness to assert, on the record:
- Whether there are any other persons in the room with the witness (if so, their names, contact information, and relationship to the witness should be preserved in the record);
- Whether the witness has any ability to communicate with counsel during the deposition (if so, in what manner and under what circumstances);
- Whether the witness has any ability to communicate electronically with third parties during the deposition (e.g., via email, text or chat)
- A description of all technology in the room with the witness that could be used to communicate with the witness (e.g., laptop computers, television screens, cue cards).
By taking a comprehensive inventory of whatever circumstances might unfairly assist the witness, counsel will discourage overreach and preserve the right to raise legal objections to the witness’s testimony, if necessary.
6. Follow customary good practices for video depositions. As always, the witness should dress appropriately for the occasion. A witness who has been self-isolating for several weeks might need a reminder about acceptable standards of grooming and dress. Because the witness will likely be at home or some other non-business location, for a remote deposition, counsel should make sure that the visible background is appropriate and that there will be no distractions during the entire time allotted for the deposition. The visible background should be quiet, safe, secure, and free from implied communication (e.g., wealth or lack of wealth).
Attorneys who follow these steps should have confidence that a remote deposition will go as well as in-person depositions. As with most aspects of litigation (and life), successful outcomes during a remote deposition are the result of preparation, practice, and attention to detail.