Depositions can be stressful affairs. For many witnesses, depositions are a once-in-a-lifetime plunge into the unknown with a lot riding on their testimony. Sitting in a room full of strangers, listening to lawyers argue over barely understood matters, with a court reporter taking down every word, it’s easy for even the most honest witness to feel apprehensive and appear unconfident.
Add to this mix deposition stress factors that were not present even a few years ago. The deposition today in all likelihood will be a remote deposition. The vast majority of depositions are conducted remotely. Witnesses in remote depositions must cope not only with the substance of their testimony but also with microphones, computers, Internet connections, and digital exhibits – not to mention virtual questioning from lawyers who may not even be in the same room.
Then there’s the prospect of video recording during the deposition, bringing with it the additional worry about “looking good” on camera. Increasingly, depositions are being recorded on video, either for trial preparation or for use at trial.
It’s easy to see that preparation for a remote deposition must cover a lot more bases than traditional in-person depositions. The litigator’s objective of having the witness appear confident and truthful is the same. But today there’s more work involved. Here are a few witness preparation topics that litigators might want to consider in order to have their witness not simply prepared but prepared for a remote deposition.
Leave personal digital devices at home. Litigators today are concerned that the integrity of a remote deposition could be impaired by witness communications and coaching from off-screen or remote third parties. The remote deposition witness is sure to be asked about the presence of digital devices as well as any papers or notes that are visible on the computer screen.
Opposing counsel will ask, “Are there any digital devices with you? Is your phone turned off? Would stand up and use the camera on your device to show me the room that you’re in?”
Questioning regarding the presence of digital communications devices and notes can be effectively used by opposing counsel to undermine the credibility of the witness’s testimony. In fact, just answering questions on these topics can rattle witnesses and diminish the impact of their testimony.
Prepare with the technology you’ll be using. Deposition day is not the time to introduce the witness to new technology. You may find that using a purpose-built virtual deposition platform like eLitigate® offers both the witness and counsel a straightforward, intuitive deposition experience – not to mention trouble-free exhibit-handling tools and a secure, confidential sidebar conference environment. If the deposition will be conducted with Zoom or a similar office videoconferencing tool, then counsel and the witness will need to take the time to familiarize themselves with the process for conducting depositions via those technologies.
Good remote deposition preparation includes familiarizing the witness with all of the documents and exhibits that will be used during the deposition. During practice sessions, the witness should be taught how to view and (if applicable) manipulate and highlight digital materials that will be used during the deposition.
Provide instruction on “digital lifelines.” In the event that sidebar “chats” are permitted during the remote deposition, practice sessions should be sure to cover this topic so that the witness knows both when and how to access whatever messaging capabilities are available during the deposition.
Does the remote deposition protocol permit the witness to request a conference with counsel? If so, the witness should know how to invoke that right. However, the witness should also be informed that too many requests for off-the-record discussions with their attorney might impair their credibility.
Wear appropriate clothing that looks good on camera. To the extent reasonably possible, witness preparation for a remote (and possibly video-recorded by a legal videographer) deposition should mirror the events that will unfold on deposition day. The likelihood that the remote deposition will be recorded on video raises a number of bases to cover during deposition practice sessions.
First, for many people, the presence of cameras makes many individuals uneasy. Counsel should take whatever steps seem appropriate to ensure that the witness does not appear nervous or evasive during video-recorded testimony.
Second, witnesses giving video-recorded testimony should be advised to dress appropriately for the deposition. This means not only wearing attire that appears pleasant and non-distracting on camera but also attire that aligns with the witness’s occupation or role in the case. Business professionals should wear business attire. Doctors should dress as the factfinder expects a doctor to dress.
Finally, the fact that the deposition is being video-recorded is a strong indicator that counsel believes the testimony might be introduced at trial. This fact alone raises the stakes. The witness must be prepared well enough that he or she appears confident and credible – because the testimony given during the remote deposition might be the only testimony that the jury sees at trial.
Careful remote deposition preparation will conquer the “fear of the unknown” that burdens many deposition witnesses. Even the most knowledgeable and reasonable witnesses can be undone by a technology glitch, an off-the-wall insinuation that the witness is being coached, or an outfit that jurors find distracting. For better or worse, seemingly irrelevant deposition hiccups matter in a justice system where witness credibility is crucial. Litigators who appreciate – and train their witnesses to overcome – these remote deposition obstacles will be the ones who obtain the best outcomes for their clients on deposition day.