A Whole New World: Advice for Remote Depositions
If you’re anything like me, you spent the early days of the stay-at-home order pushing back a deposition or two, assuming that you’d be better off waiting until they could be conducted “properly” (i.e., in person). By now, it’s clear that we must adapt during these bleak times to continue to represent and protect the interests of our clients. It also doesn’t take an economist to realize that after we beat this virus, and our stadiums are once again filled, video conferencing will likely remain a large part of our professional lives.
This is, of course, a good thing. Economic and environmental considerations favor an effort to eliminate thousands of hours of needless travel. So, video conferencing will likely become the preferred way to conduct depositions in the future. But the current transition period presents pitfalls that attorneys must avoid in order to effectively represent their clients.
An Illustrative Anecdote
I recently appeared for a Zoom deposition of a plaintiff in an auto-negligence case. When his counsel and I agreed to conduct the deposition via Zoom, I was certain that any potential issues would be outweighed by the platform’s efficiencies. Having successfully deposed several individuals with questionable internet connections, I was confident that I could handle anything.
Unfortunately, my hubris became apparent when the plaintiff entered the Zoom conference room from the backseat of his car—in a public park next to a busy freeway—using his iPhone on a cellular data connection. I valiantly attempted to power through the freeway noise and choppy internet to obtain the plaintiff’s testimony. After all, each of the parties had appeared, and the court reporter was present. But when the deponent requested a break to use the restroom, and took his iPhone with him, I knew that we needed to adjourn.
Best Practices for Remote Depositions
Party depositions are often a turning point in any lawsuit, and you rarely get a second bite at the apple. Now that Zoom depositions are practically unavoidable, here are a few things to consider:
- Agree beforehand that the deponent will appear for the deposition in a suitable environment with a strong internet connection.
Get assurances from opposing counsel that the deponent will appear in a quiet place with adequate internet. This is for the benefit of all parties, including the deponent. If the deposition fails due to a poor internet connection, or because the court reporter is unable to transcribe the testimony, the parties will have to reschedule it, and the deponent’s life will be interrupted once again.
- Prepare and exchange exhibits and documents well before the deposition.
Before a recent deposition, the court reporter assured me that exhibits could be exchanged by pasting the documents into the comment thread of the Zoom conference room. This proposed method ignored two key issues: First, if the deponent used a device other than a laptop, they likely would be unable to view the documents. Second, even if the deponent used a laptop, there was no guarantee that they would know how to open and view the exhibits.
So, to the greatest extent possible, make sure that you forward anticipated exhibits to the court reporter and opposing counsel well before the deposition. Also, confirm with opposing counsel that their client will be able to view the documents during the deposition (which may require physical mailing). The same goes for documents that you may wish to view during the deposition, such as the deponent’s driver’s license. You may find it difficult to read the tiny print of a card-sized piece of laminate through a webcam. Thus, you may want to request a copy of the deponent’s license or other documents before the deposition.
- Make sure the deponent realizes that this is a court proceeding.
Parties seemed to take depositions more seriously when they were hailed to a large conference room with several people in suits and a (gasp!) court reporter. In the remote context, the deponent’s position and location (e.g., slumped against a headboard with a laptop on their stomach versus sitting at a desk or table with a plain background) often reveal how seriously they intend to take the deposition (notwithstanding, of course, any medical or financial limitations).
Regardless of the surrounding circumstances, it’s important that the deponent realizes that an online deposition is a formal court proceeding, and that their attendance and cooperation are compulsory. As with in-person depositions, some deponents exude an attitude that they are doing you a favor by appearing. A deponent with this mindset is much more likely to push back when you ask questions that they believe are irrelevant. You can’t control whether opposing counsel conveys the seriousness of the proceeding to their client, but you can take steps to do so. For example, when you reiterate the rules that the deponent must follow at the beginning of the deposition, note the formality of the proceeding and spotlight the court reporter, emphasizing that they are transcribing the conversation.
- Don’t be afraid to adjourn the deposition.
If the deponent has a poor internet connection, is in a loud area, has non-parties present, or is refusing to cooperate, don’t be afraid to adjourn the deposition and note your reasons for doing so on the record. If the deponent is a plaintiff, you are entitled to depose them and must protect your client’s interests. Don’t let the plaintiff’s ill-preparedness prevent you from asking the questions necessary to adequately defend the case.
This holds true for opposing counsel’s conduct as well. Poor internet connections often lengthen a deposition, requiring parties to repeat questions and answers. Don’t be intimidated if opposing counsel becomes impatient and challenges the relevance of your questions. Politely remind counsel that you are entitled to a complete deposition under the court rules, even if it takes longer than usual because of the remote format.
- Be mindful of your own behavior.
Frequently participating in Zoom conferences can lull an attorney into a false sense that they “know the drill” and always handle depositions as politely and expediently as possible. However, as Bob Marley put it, “Before you start pointing fingers, make sure your hands are clean”—these days, both literally and figuratively!
Make sure to be courteous toward the deponent. Remember that you are speaking with a real individual with real experiences, and that their time is just as valuable as yours. Test your own internet connection, and put a “Do Not Disturb: In Deposition” sign on your office door. Additionally, as with in-person depositions, remember that subtle facial expressions or body language can make you seem smug or unsympathetic. Unknowingly, you could derail a deponent’s good-faith effort to participate or destroy rapport that you previously established. Be respectful, be professional, and be engaged.