Virtual Depositions in a Pandemic World … and Beyond

Are virtual depositions better than the old way of doing things? If given the choice, should you choose a virtual deposition over a physical one?

By Anand C. Mathew | April 14, 2021

Reprinted with permission from https://www.law.com/2021/04/14/virtual-depositions-in-a-pandemic-world-and-beyond/

By now, everyone knows that the world shut down in March 2020 because of the COVID-19 pandemic. The legal industry, like many other industries, was not spared. But slowly, the wheels of the justice system began to turn again. Judges began holding court hearings by telephone or video conference, and lawyers found ways to continue litigating their cases, including by taking “virtual” depositions.

Remote depositions are nothing new. Even pre-pandemic, witnesses sometimes sat for depositions “remotely” by appearing through videoconference. It was the exception rather than the rule, but it was not unusual. Those remote depositions, however, looked far different than the “virtual” depositions of today.

The pre-pandemic remote deposition was something of a hybrid approach. The witness might appear by videoconference, but everyone else would physically gather in a law firm’s conference room to participate in person (although some court reporters like to be in the same physical location as the witness to make sure that answers are clearly heard). The witness would generally travel to another law firm’s conference room in the remote location and a high-speed video link would be set up between the two conference rooms. Paper exhibits were typically still used. In short, these “remote” depositions were still physical depositions in a physical location—some of the participants just participated remotely.

Today’s “virtual” deposition looks and feels much different. There is no physical location. There is no law firm conference room. The witness, attorneys, videographer, and court reporter are all in different locations—usually kitchen tables, home offices, and bedrooms. Instead of a high-speed video link between two law firm conference rooms, participants join via home WiFi or, when connections are spotty (as they often are), by telephone. Usually, there are no physical exhibits.

Despite these differences, the COVID-19 pandemic has forced technology forward and answered the question of whether completely “virtual” depositions can work. They do. Regardless of how much things return to “normal,” some form of the virtual deposition is likely to stick around. But bigger questions remain. Are virtual depositions better than the old way of doing things? If given the choice, should you choose a virtual deposition over a physical one? This requires careful thought because there are genuine pros and cons to virtual depositions that attorneys should consider.

Appearance

Regardless of whether an attorney takes a physical or virtual deposition, at the end of the day the witness gives testimony under oath and a written transcript and/or video transcript is produced. The written transcript, on its face, looks largely indistinguishable from a traditional deposition transcript—at least in terms of format. Attorneys have noted that substantively transcripts can appear messy because of connection delays that result in witnesses and attorneys talking over each other. Court reporters have more difficulty understanding the questions and answers and may more frequently interrupt the deposition for clarifications. The transcript can also include unnecessary back and forth between the parties about trying to resolve technical issues (muting/unmuting, accessing exhibits, disconnections, etc.). One transcript I reviewed included more than a dozen pages of an attorney trying to walk the witness through how to log on to the exhibit share website. These discussions could be held “off the record,” but often they are not—especially if attorneys think they may have to demonstrate to the court why technical issues during the deposition necessitate additional time. See, e.g., In re Illinois Courts Response to COVID-19 Emergency/Impact on Discovery, M.R. 30370 (June 4, 2020) (temporarily amending Illinois Supreme Court Rule 206 to provide that time spent at a remote deposition addressing technology issues does not count against the time limit). I’ve actually heard of a witness who repeated her login and password on the record!

Video transcripts can, depending on the circumstances, appear wildly different. Traditional deposition videos show the witness against a neutral background and are generally focused on the face. I have found no consistent standard for virtual deposition videos. Sometimes the videos show only the witness as with traditional deposition videos. Sometimes they show the witness spotlighted with videos of the other attorneys appearing in smaller boxes to the side. Other times, the videos show a “Brady Bunch” style gallery of witnesses, attorneys, and court reporters. Attorneys should confirm with the videographer the style of video they want.

In terms of background, some witnesses wisely choose a neutral wall as a background. Then, there are witnesses, like an investment banker we recently deposed, that intentionally aim their camera to show off the waterfront view from their New England luxury vacation home (this particular witness also asked to pause the deposition so that he could close the door to his patio because there was a sea breeze coming in). Others choose a more relatable background, like a Peloton or kids’ artwork. One colleague recounted a witness’s dog jumping up on the couch behind her and wagging its tail at the camera, wondering how that might eventually be perceived by a jury. Another colleague had a witness that kept moving throughout his house as the day went on. When at one point the sun was directly behind the witness, the witness was able to testify with a “heavenly glow.” Another recalled how a witness inadvertently left on a beauty filter giving him fake eyelashes. The poor witness’s defending attorney said nothing and the taking attorney was left wondering whether this should be categorized as a plus or a minus.

I have also found inconsistencies in how attorneys choose to appear. In some depositions, all participants turn on their cameras, regardless of whether they are asking questions or not. In others, only the witness, court reporter, and questioning attorney are on camera and the other participants turn their cameras off until it is their turn. Some attorneys are fearful of putting themselves on mute—even when it isn’t their turn to question the witness—in case they need to make an unanticipated objection before the witness answers the question. The current rules unfortunately provide no good solutions to this problem.

Attorneys should obviously test all equipment in advance of the virtual deposition. It is a good idea to have a colleague log in to see how the attorney appears and sounds. If the attorney is using multiple screens, it is ideal to put an external camera on the screen used most frequently so that the attorney appears to be looking at the witness, rather than staring off to the side. A defending attorney should also run through these same steps for the witness. Many court reporting services will offer to help the parties and witness test the deposition software in advance. The defending attorney should ideally be present for any tests with the witness as the court reporter may have other parties or opposing counsel go through the same walkthrough together.

Time and Cost

Nearly everyone I spoke with agreed that there are two huge benefits to virtual depositions: time and cost. Scheduling depositions can be hard—especially when multiple lawyers are involved and when it requires travel. In a recent case, we needed to depose a witness in Switzerland. There were seven law firms participating with attorneys from New York, Chicago, Washington, D.C., San Francisco, and San Diego. Putting aside the hoops you would have to jump through under the Hague Evidence Convention to take a deposition in Switzerland, finding time for a dozen attorneys to coordinate schedules and travel halfway across the world for a multi-day deposition would be challenging, to say the least. Conducting the deposition virtually made coordinating schedules immensely easier and saved hours of travel time. It also saved all of our respective clients a significant amount of money since we could forego airplane tickets, hotels, taxis, and meals while travelling.

Colleagues I’ve surveyed from other firms repeatedly shared the same views. Not having to travel is the biggest cost-savings and scheduling advantage. Some attorneys observed, however, that because no travel was required, depositions were often scheduled closer together, which can make preparation for depositions challenging. Attorneys may also be more willing to take depositions of less-important witnesses when there is no travel involved and costs are reduced.

While the overall number of depositions taken in cases may increase as transaction costs and inconvenience go down, attorneys also observed that virtual depositions were generally shorter in duration than their physical counterparts. Some commented that attorneys didn’t feel obligated to use the full allotted time for a deposition to justify the travel and expense of the deposition. A 30-minute deposition is difficult to justify if everyone has to travel, but virtually it might make sense. Attorneys also noticed that breaks for snacks and meals were shorter when participants were at home.

Junior Attorney Involvement

It is often difficult for junior attorneys to receive substantive deposition experience. Junior attorneys may help with the preparation and the exhibits, but once the deposition actually begins a “second chair” can do little more than pass hastily scribbled notes to the taking attorney in the hopes that the attorney will see and understand what to do. Most feedback comes during breaks in the deposition, when it might be too late to re-visit the testimony.

The virtual deposition experience considerably changes junior attorney involvement. First, because no travel is involved, using a junior or “second chair” attorney becomes a realistic option for many cases that otherwise could not justify sending multiple attorneys to a deposition. Second, the junior attorney’s involvement can truly be substantive. During our virtual depositions, we had a second attorney logged into the deposition checking the real-time transcript, what other witnesses said during their depositions that were inconsistent with the current testimony, other documents in the production, and unexpected issues or topics that arose during the deposition. We used our secure intrafirm messaging software to communicate in real-time during the actual deposition to tailor the questions appropriately. This can be a big technological advantage for the taking attorney.

For many of the same reasons, virtual depositions have created more opportunities for junior associates to “first chair” depositions. Firms may be more comfortable with junior attorneys taking the lead on depositions when senior attorneys can oversee and provide real-time feedback. For example, in a recent deposition taken by a more junior attorney, the attorney skillfully got the witness to admit a fact we wanted. Just as he was about to move on to the next topic, I messaged him: “Close the loop with the witness so she can’t change her answer later.” It was the type of real-time feedback that is nearly impossible to give or receive in a physical deposition.

Witness Behavior

Virtual depositions can present a very different witness dynamic. Because the witness is not in the same physical location, it is difficult to read the witness’s body language. Attorneys have noticed that can make it harder to connect with the witness and stay in rhythm. If you are defending a deposition, small talk during breaks can be helpful to feel out how a witness is doing, but that is difficult to do over a phone call. One attorney recalled a witness that became heated during the deposition and had to take a break. In that situation, the attorney would typically have taken the witness outside for a walk to calm down. A phone call to the witness just didn’t have the same effect. As others have noticed, “Zoom fatigue” is also a real issue without downtime to pause and regroup in a more traditional way.

Witnesses can also behave differently when they are sitting in the comfort of their own home. Some attorneys experienced witnesses that were more chatty, even occasionally swearing on the record. Some witnesses have been caught using notes or talking to people that are with them but unannounced. An attorney taking a virtual deposition should make sure to ask the witness about things “off screen” that might affect the deposition or testimony. If there are doubts, the witness can be asked to pan the camera around the room. Some attorneys have concluded depositions by asking witnesses if they have received any emails, messages, or texts concerning the case since the deposition started.

Witnesses may be more likely to stretch the truth when testifying from the comfort of their home. Witnesses might take their sworn testimony obligations more seriously when they are sitting at a law firm conference table surrounded by attorneys wearing suits, with lights trained on them by the videographer and the audible typing of a court reporter taking down every word they say. That same gravitas is just not there when the witness is testifying from his kitchen table and no one else is in the room. True, it can be more conversational, but it can feel less serious than it actually is. For the same reasons, it can be hard for attorneys to pressure witnesses into answering tough questions or otherwise “control” the witness when they aren’t in the same room and there is no real “eye contact.”

Technical Issues

Most attorneys I spoke with encountered some kind of technical issue during a virtual deposition. I have been in numerous depositions where witnesses or attorneys had trouble connecting to the deposition, accessing exhibits, etc. As noted above, because of varying Internet connection reliability, there can be audio or video lag causing people to talk over each other.

In one deposition, the court reporter lost her Internet connection. It took 10 minutes for anyone to realize there was no court reporter recording the transcript. Luckily, the parties were able to stipulate to allowing the court reporter to use the video recording for the transcription. A bigger problem occurs when a defending attorney’s Internet connection drops out and no one notices. Unlike most conference call services, virtual deposition platforms often don’t provide clear notice when people join or disconnect from the deposition. Attorneys should plan for these contingencies in advance and work out appropriate stipulations with other counsel.

One technological advantage to virtual depositions is that court reporters or videographers can be swapped on the fly. When we had a court reporter with Internet connection problems, we were able to secure another court reporter within half an hour since they just needed the connection details. Similarly, getting a last-minute videographer or courter reporter is trivial if they only need login details.

Exhibits

Using exhibits in a virtual deposition can be a different experience. Attorneys certainly enjoy the fact that it is easier to introduce last-minute documents that are not in the attorneys’ outline or planned exhibit set. Multiple paper copies of exhibits do not need to be made up since usually the attorney just needs to upload a file to the exhibit share website. Even if no last-minute exhibits are used, avoiding the need to ship or travel with multiple banker’s boxes of documents is a huge time, cost, and convenience savings.

Sometimes, counsel will agree to exchange likely exhibits before the deposition to avoid any technical issues. That makes sense in certain circumstances but takes away the element of surprise at depositions and lets witnesses prepare on the documents they know will be used at the deposition.

Electronic exhibits have definite downsides as well. Attorneys reported more time wasted on documents. It is generally much easier to hand a stapled document to a witness and say, “turn to page 3,” then wait for the document to upload, instruct the witness to refresh the screen, wait for the document to download on the witness’s computer and then wait for the witness to navigate to the correct page. Similarly, this typical upload/download method makes it nearly impossible to confirm that the attorney and the witness are looking at the same page.

Some deposition platforms let deposing attorneys share their screen to control the document and its navigation. This can put testimony at risk, however, if witnesses later claim the attorney did not let them see the document in context or zoom in or out. Attorneys should make sure that appropriate questions are asked to address this potential issue.

Some exhibit platforms “publish” exhibits to the witness and all attorneys simultaneously. This speeds things up but also does not allow the defending attorney to review the document for objectionable material before it is shown to the witness. Attorneys have also reported that some videographers recorded both the witness and the exhibits presented together. This can be a problem if later the attorney wants to use the deposition video but the exhibit ends up not being admitted. These issues should be worked out with other counsel and the virtual deposition provider in advance.

Attorneys also lamented the fact that many exhibit sharing platforms do not yet provide the capability to mark-up exhibits in real-time. This makes it difficult for witnesses to make annotations. Attorneys should make sure the platform they use allows this if they think annotations will be necessary during the deposition.

* * *

When the COVID-19 pandemic shut down in-person depositions, court reporting firms scrambled to put together software to offer attorneys virtual deposition capabilities. In my experience, these software packages usually consist of little more than a Zoom session and a Dropbox-type site for exhibits. As virtual depositions become mainstream and accepted, I expect virtual deposition software to improve and address some of the current shortcomings. Regardless, virtual depositions are likely to remain another litigation tool in the attorney toolkit and attorneys will have to weigh the costs and benefits of not only whether to take depositions, but whether they should take them virtually or in-person.

Anand C. Mathew is a partner at Palmersheim & Mathew.

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Reprinted with permission from the April 14, 2021 edition of the LAW.COM © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.