Podcast - The Remote Witness: Preparing for Deposition
In the third episode of his "Remote Witness Preparation" podcast series, "The Remote Witness: Preparing for Deposition," litigation attorney Dan Small discusses how to handle a deposition in the remote environment. The COVID-19 pandemic means counsel will often not have a say in the decision to go remote. However, if given the option to postpone a deposition until it can be conducted live, counsel must consider several factors, such as cost and the quality of testimony. Once the decision to go remote has been made, no one should ease up on the normal rules of preparation simply because everyone is not in the same room. Logistics issues, proper communication, language barriers and errata sheets all must be covered by witnesses and counsel.
Dan Small: As the federal court stated in Hall v. Clifton, "Depositions are the factual battleground where the vast majority of litigation actually takes place." But what if that battleground is in cyberspace because the deposition is done remotely? The COVID crisis has turned an occasional oddity of needing to provide remote testimony into the new norm, where everything is done in front of the camera in real time. Remote depositions now involve people in different rooms, different states, different time zones, even different countries. Counsel has to prepare themselves and their witnesses for the very different feel and features of this new process.
What to Consider When Deciding to Go Remote
First and foremost is the decision to go remote. In many cases, counsel will not have a choice. That decision has been made by the court or other ruling authority. But we've seen regulatory commissions holding remote hearings and testimony. However, in cases where there may be a choice to either go remote or put off the deposition until it can be done live, counsel needs to carefully consider the advantages and disadvantages of both scenarios, including the following:
First, costs. A remote deposition may actually be significantly less expensive than a live one, particularly if there are travel or other expenses that would be incurred for live testimony.
In a document-heavy deposition, doing it remotely takes significantly more preparation and coordination. In a live deposition, you can get away with thumbing through your files for a document you may not have anticipated needing to show it to the witness. It can be much more difficult doing that remotely. As I mentioned in the first podcast of this series, I highly recommend creating a well-organized document binder for both you and the client to easily reference if you plan to use documents for remote depositions or other online testimony.
Quality of Testimony
There's no question that in many in-person depositions, the questioner can pick up nonverbal cues to figure out how and where to push the witness for better testimony. Moreover, the intensity and focus of the live event can lead to better testimony on both sides. In an online environment, it's not as easy to pick up on those cues and use them to interpret the responses from the witness.
Confronting the Witness
In depositions where it may be important to confront the witness either with tough questions or with documents and transcripts, there's little doubt that face-to-face is more effective. On the other hand, if you are representing the witness, there may be advantages to avoiding the added intimidation of a face-to-face confrontation with opposing counsel. If you know there will be contentious issues and you're required to use remote testimony, spend extra time preparing your witness and have them practice responding to tough questions on camera, including teaching them how and when to indicate if they may need help or guidance from counsel.
There are times when the witness has to tell or explain a difficult story and the added credibility from looking people in the eye may be of value, so the delay to wait for a live room or courtroom may be advantageous.
What to Consider After Deciding to Go Remote
Once the decision for a remote deposition is made, counsel needs to prepare the witness for the process. The parties and the witness should not ease up on the normal rules for depositions just because everyone is not in the same room. But it can make recognizing and enforcing those rules more challenging. For example, the Illinois Supreme Court recently issued an order amending its Rule 206 requirements for remote depositions. The committee comment to the rule addresses several key logistical issues, including attendees. In a live deposition, everyone in the room knows who's who and who's where. The committee notes that since in a remote deposition opposing counsel is not in the room to see what's going on, "The testifying deponent may be examined regarding the identity of all persons in the room during the testimony." The comment goes on to say that "where possible, all persons in the room during the testimony should separately participate in the video conference." In other words, if you're there, you should be on camera so there isn't hidden misconduct. Questioning counsel should ask each witness, and each witness should be prepared to answer, who else is in the room and who else they're communicating with in any fashion.
Ensure Proper Communication
If the deposition is not live, it may be tempting for counsel or others to try to communicate with a witness in ways they might not with everyone watching. The committee comment states that "Counsel representing a deponent should instruct the deponent that he or she may not communicate with anyone during the examination, other than the examining attorney or the court reporter."
No Cheat Sheets
Again, without opposing counsel or others in the room, the witness or their counsel might be tempted to seek written guidance or written input. The committee notes say that counsel for the witness should instruct that "He or she may not consult any written, printed, or electronic information during the examination, other than information provided by the examining attorney." I would expect many other jurisdictions to offer similar guidance, so be sure to stay current on your particular court's guidelines.
Language Barriers and Related Issues
Next, consider language issues. Like many aspects of communication, language issues may be greatly aggravated by the remote setting. If people are talking over one another, if there's a significant sound delay or if the words just don't seem clear, counsel may want to stop and have it repeated, or ask the court reporter to read it back, and then do whatever else he or she needs to make it clear. If there is an interpreter, interpreting is also much harder remotely and adds considerable time to the process. Make sure there's someone on your team who speaks both languages and can confirm in real time that the interpreter is getting it right. Stop and interrupt if you're not sure, or if a correction or clarification needs to be made.
Importance of the Errata Sheet
Finally, in a remote deposition, the errata sheet becomes even more important to give counsel and the witness one last opportunity to make sure that what goes into the record is really what was said on camera.
Communicating with the Team
Finally, consider the challenges of communicating within your team. My [former] Holland & Knight colleague Tara Kaushik recently wrote a great blog about her experience conducting a remote evidentiary hearing, and much of it is equally applicable to a deposition. On this issue she advised, and I quote, "Strategize in advance how you can confer offline with your client, your witness or co party's counsel in sidebar conferences during the hearing. You may want to make sure that you have more than one phone in the room for texting or calling as needed, or a separate laptop with a separate video conference set up for strategy meetings during breaks."
Many cases these days are won or lost at the deposition stage. Doing a deposition remotely presents new challenges to an already difficult environment for witnesses and counsel. Work with your witness to anticipate and prepare for those challenges.