If someone told me three weeks ago I would be taking depositions over the phone from my kitchen table while attempting to get my dogs not to bark, I would have stared at them like they were crazy. Over the last few weeks the world as a whole, to include the practice of law, has seen some crazy changes in day to day routines. However, as they say, the show (or the deposition) must go on. Since the large majority of attorneys now find themselves working from home, depositions are taking place telephonically or over electronic mediums such as Skype or Zoom. Covid-19 has brought about many uncertainties. We hope the following tips will help attorneys better navigate the virtual discovery process.
- Set-up (telephonic): Despite the fact that our surroundings might be more casual than usual, it is important to have the proper equipment in place to ensure the deposition runs as smoothly and professionally as possible. If the deposition is taking place telephonically over your cell phone, make sure the phone has a full charge and/or you have a charger nearby. Headphones or Airpods can also be helpful to allow you to take the deposition handsfree while avoiding excess noise caused by speakerphone. If using a conference line, make sure all parties have the call-in information readily accessible in the event that the call gets disconnected prior to the conclusion of the deposition. It is also important to speak slowly and allow for pauses in between questions and answers. While it is easy to talk over each other during a live deposition, this becomes even more difficult when parties are not in the same room. If you find yourself telecommuting with others in your house, make sure you set up in a private location and all parties within your household are aware you will be participating in a deposition. It is also helpful to provide an estimated time length in order to avoid unnecessary interruptions.
- Set-up (Zoom/Skype): If you are new to using programs such as Skype and Zoom, I recommend logging on in advance of the deposition to make yourself familiar with the programs’ electronic capabilities. While most offices are equipped with sufficient bandwidth to run these programs with ease, make sure your at-home WiFi will be able to do the job as well. If you are accessing the program from an app on a cell phone, it is also important to make sure the phone is fully charged and/or a charger is nearby. If you are operating remotely from a laptop, this is equally as important. Our firm has had great success with Zoom over the last few weeks. Make sure you are aware of the limitations that come with the free version prior to the onset of your deposition. Things like time limits and ads might make it necessary to upgrade to the Pro version. Before beginning the substantive part of the deposition, make sure all parties have their microphones turned on and the angle of the camera shows each participant’s face clearly. While it may become appropriate for certain parties to mute their microphones during certain portions of the deposition, making sure each microphone works prior to the beginning of the examination can avoid disruptions.
- Strategies: You should address the fact that all parties may not be in the same room and the complications that can arise from the same. If opposing counsel and their client are in the same location, the tendency to participate in improper communications may arise. By establishing the rules at the start of the examination, you can hopefully avoid any chance of impropriety. If you notice a witness looking off screen or speaking to someone else in the room, address the situation head on and have their counsel remind them of the rules. It is also important to note these things for purposes of the record. If you are accused of participating in improper communication during the course of the examination and are in the same room as the court reporter, ask the reporter to note on the record whether or not he or she noticed any improper communications taking place. Establish with each party who is in the room or listening to the testimony prior to beginning the questioning. It is equally critical to stay alert and watch for clues to confirm the veracity of this information throughout the deposition.
- Expect the unexpected: It is certainly possible that everything will not go as planned during the course of your remote depositions. If you hear someone yell up the stairs “what’s for lunch?” or a dog bark, laugh it off while keeping your composure. Do not forget—if the deposition is taking place by Zoom or Skype, all parties can see your facial expressions throughout the course of the call, whether or not you are the examiner. Maintaining eye contact with parties during your questioning is equally important over Zoom as it is in person. We should all attempt to conduct remote depositions as professionally as possible while still showing grace to others when unexpected situations arise.
- Plan Ahead: I recommend reaching out to opposing counsel prior to the remote deposition to discuss the logistics. Remember to note on the record that the parties stipulate to proceeding despite the fact that the court reporter is not in the same location as all witnesses/parties to the case. With respect to exhibits, provide the court reporter a copy via e-mail or a hard copy in the mail well in advance of the date of the deposition, if at all possible. If you expect an objection to an exhibit from an opposing party, it may be advisable to discuss the same with their counsel prior to the date of the deposition. Be prepared as usual while also remaining flexible.
I hope these tips and best practices will help ease any concerns regarding remote depositions. Remember, we are all in this together, even when we are not in the same room.
This post has been prepared by Robinson Gray Stepp & Laffitte, LLC for informational purposes only and does not constitute legal advice. For more information, contact attorney Ashley Dixon.
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