For many of us, connecting by Zoom, Teams, or WebEx has become routine. Whether it is for work-related meetings, online schooling, or remote social hours, video-conferencing platforms have provided a way to maintain daily connection during the COVID-19 pandemic.
Litigation has continued amidst social distancing requirements and court closures, and with that comes the necessary evil of depositions. As those in the insurance industry are well-aware, hundreds of COVID-19 claims have evolved into litigation and are entering the discovery and deposition phase. Many, if not all, of these depositions will be handled remotely. While this does pose additional considerations as to procedure, remote depositions are not to be feared. Below are the three tips for witnesses, counsel, and other participants to assist in preparing for a remote deposition.
1. Plan, prepare, and plan some more.
Take advantage of the short commute to your home office by using that extra time to prepare for the logistics of a remote deposition. Make sure you have a stable Internet connection and a working microphone. The court reporter transcribing the deposition will thank you—plus, it will be a long day for everyone if every other question or response has to be repeated because of a poorly positioned microphone.
Double check the background that will be visible behind you. Many depositions are video-recorded as well as transcribed, and these videos ultimately may be played to a jury. Family photos, clocks, or other artwork behind the witness may detract from the testimony. Consider using a professional-looking virtual background if necessary. Similarly, make sure family members and pets are out of the way to minimalize any distracting background noise.
Similarly, be prepared by having the direct phone number handy for the court reporting service or technician. You don’t want to be stuck calling a 1-800-number to find someone to address an emergency technical or connectivity issue that is holding up the deposition.
2. Use an experienced court reporter and familiarize yourself with the technology.
This might be your first remote deposition, but make sure it is not the first for your court reporter. The court reporter (or videographer) should serve as the host and should be well-versed in the mechanics of serving as the appointed officer from a remote location.
Experienced court reporting services should come prepared with a stipulation to swear in the witness remotely. They should also be ready to handle exhibits electronically, which will save the witness from having to ship hard copies to the court reporter later. Sophisticated video-conferencing platforms allow a witness to take control over an exhibit on the screen and to scroll through pages or add markups as instructed by counsel. The marked-up version can then be saved and electronically marked as an exhibit. Counsel should agree in advance how exhibits will be handled and whether any hard copies will be circulated in advance, potentially under the agreement that none will be viewed by the witness or counsel until instructed during the deposition.
Like any Zoom call, you will receive a link prior to the deposition. Test it out a day or so before to make sure you have any necessary software installed and to confirm the platform is compatible with your computer, camera, and microphone. Similarly, make sure you have a game plan for exhibits, whether that be uploading them in advance or sharing them yourself during the deposition. Likewise, make sure you conduct a trial run of that technology.
3. Be a good witness or prepare your client to do the same.
Have the host set up a private breakout room so the witness and counsel can confer during breaks. The witness should set up her screen so she can see the questioning attorney, the court reporter, and her counsel. At all depositions, witnesses need to remember to give counsel time to object to a question before answering. This can be tough to do even when counsel is sitting right there. Remotely, it is easy for the witness to fall into conversation mode and forget to include the witness’s counsel in the equation. If needed, counsel could hold up a finger when he or she intends to object to remind the witness to wait.
Witnesses also should be aware that the questioning attorney often will ask if the witness has any materials with them during the deposition. If so, these materials likely will have to be provided to the other side. It is easy to leave prep materials at home when appearing in a conference room. But when the deposition is happening at home—perhaps in the same spot where the witness virtually met with counsel to prepare—witnesses need to make sure to remove from the room any counsel-prepared material or other notes they don’t want to share.
Overall, being more comfortable and familiar with the process than your opposition will be to your advantage and will allow you to focus on substance rather than the logistics. Remote depositions are likely to be around for a while. Embrace them!
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