Conducting Depositions in a Virtual World

The COVID-19 pandemic altered the landscape for many industries, the legal industry being no exception. The inability to attend hearings, trials, or even client meetings in-person forced lawyers to adapt to new ways of working.  One of the most significant, and likely most permanent, changes has been the move to virtual depositions.

A deposition is a legal proceeding that is essentially a question-and-answer session. One party issues a notice or subpoena to a person or entity with the force of the court behind it requiring a corporate representative or designated person to appear at a give date, time, and location for deposition. Traditionally, and before COVID, depositions would be held in-person at the deponents counsels law office and required all lawyers in the action to travel and be physically present in the room where the deposition was being conducted. More often than not, each of those lawyers printed out hundreds to upwards of thousands of pages of deposition exhibits to show the witness (and copies for counsel of course) during questioning.

Enter COVID and the whole playbook flew out the window. Lawyers in the midst of litigations, myself included, had to quickly adapt in order to keep our clients cases moving forward. At first, the hesitancy and concerns over using Zoom or other virtual platforms was palpable. After all, lawyers are generally creatures of habit and tradition. The idea of shedding our litigators bags and the voluminous papers they contained was disarming. Yet, here we are, three years out from the start of COVID and virtual depositions continue to be the default.

So what are virtual depositions? Virtual depositions are simply depositions that are conducted using video conferencing software, such as Zoom. However, there are key advantages and disadvantages to conducting a deposition virtually. On the advantages side, without question, they are more cost-effective than in-person depositions. Lawyers and witnesses no longer have to travel to a specific location, which saves a significant amount of time and money for everyone, including the clients. Virtual depositions also give lawyers the freedom to operate in a completely virtual, paperless world alleviating the need to print out multiple copies of each and every deposition exhibit again saving costs, and some trees, in the process. Ultimately, virtual depositions, to the tech savvy lawyer, allow for superior control over the “room,”witnesses, and the use and presentation of exhibits.

However, there are some disadvantages to conducting virtual depositions. Virtual depositions, by their nature, are more technical. Lawyers need to make sure that they have the proper equipment and software to conduct a successful deposition. and know how to use it. Virtual depositions can also be more difficult to control, especially if the deposing lawyer is not comfortable using technology. The handling of exhibits can be clunky and problematic if the deposing lawyer is not technologically competent and aware of the potential issues with showing a witness a virtual document. Conducting a deposition virtually also means that the deposing lawyer cannot see what or who else may be in the room with the witness. With many miles in between and the use of cameras and screens, virtual depositions can also be less personal making it harder to build rapport with a witness.

Despite their disadvantages, virtual depositions are certainly here to stay. However, not all depositions should be conducted virtually. Depending on the complexity of the matter, the witness, and even the opposing lawyer, some depositions are best in-person. But for the vast majority of depositions where it is appropriate to conduct virtually, here are some helpful tips for taking effective virtual depositions:

• Make sure that you have a good internet connection.
• Test your equipment before the deposition begins.
• Have your virtual exhibits prepared in PDF format, organized by exhibit number or order of entry, and easily accessible to load when using.
• Dress professionally, even though you are not meeting with the witness in person.
• Confirm the witness can see and hear you clearly.
• Make sure the witness is close to their microphone and the court reporter can clearly hear the witness.
• Advise the witness during instructions of potential delays or lag in the audio to ensure questions and answers are clearly heard and recorded.
• Ask the witness if there is anyone else in the room and advise against consultations during the course of the deposition.
• Advise the witness of the procedure to follow if the deposing attorney or the witness lose internet connection.
• Confirm for each exhibit shared that the witness can clearly see the text of the document and that the witness has no issues reading the document.
• Scroll through each page of exhibits at a slow, even pace, confirming with the witness they are able to see each page and asking if they need to stop on any particular page.

The rise of virtual depositions is a significant change for the legal industry and lawyers need to be prepared for these changes and evolve their approach to taking depositions.  By embracing virtual depositions and being knowledgeable of Zoom and other applications lawyers can ensure that they are able to take effective, successful depositions even in a virtual setting.