By Jennifer Pedevillano
Prior to March 2020, it was the exception, not the rule, for depositions to proceed via video conference technology. Even if one person involved in a deposition appeared remotely, whether that was a client or attorney, anyone else involved was in the room with the witness. Then came March 2020 and everything changed. For a while, everyone was rescheduling depositions for a few weeks or months out, hoping Covid-19 would quickly become a thing of the past, a story we would tell our grandkids of when everything stopped for a few short weeks. Obviously, that did not happen. Now when discussing the logistics of a deposition words such as remote and Zoom, or any other video platform, are the norm.
When preparing for a remote deposition, there is more to consider than simply “Is my wi-fi fast enough?” or “Do I need to put on pants” (the answer is yes by the way). First, you should know whether your jurisdiction requires any specific procedures or has set rules for remote depositions. For example, there may be a rule regarding the location of the court reporter or a rule requiring you to provide exhibits a certain number of days prior to the deposition. Second, take time before the deposition to discuss a protocol with opposing counsel. The protocol should address who can be in the room with the witness, communication with others (such as whether cell phones should be off and email closed), and how to handle exhibits, among other things. While there are many generalities a protocol may include that would apply to any remote deposition, it is important to revisit the protocol for each witness and adjust as needed. You also need to consider the location where your witness will testify from – the location should be professional, but comfortable for the client, quiet, and have adequate lighting. Third, you will want to practice using the technology to become familiar with the platform. You should make sure you understand the control options, including sharing exhibits in case it becomes necessary. You also need to make sure your witness is comfortable with the platform – which often means practicing with your witness.
Practicing with your witness involves more than a five-minute session to verify the witness knows how to sign in, turn on the camera, and can hear you speaking. If a deposition will be done remotely, it is best practice to prepare your witness remotely as well. This allows you to observe how the witness will appear to opposing counsel and provide feedback on any necessary adjustments to maximize the witness’s effectiveness. The key to remote depositions is preparation, for everyone.