No one knows how long we will be living in this COVID-19-inspired Twilight Zone episode. Estimates vary widely over how long shelter in place rules will remain in effect around the country, and no one knows how things will be different when we partially emerge. We have no idea how long our trial courts and related services will be impacted by the pandemic; we do not know how courts and other tribunals will (or can) adapt to all of this growing uncertainty, and we don’t even how long the Diet Dr Pepper and Utz Potato Chip strategic reserves will last. But in the midst of all of these unknowns, some things will remain the same. While in some sense we mean the indomitable human spirit, we specifically mean that people will continue to disagree with each other, disputes will continue, and new disputes will arise.
So what can be done about current cases while large swathes of the country are in lockdown? While trials (especially jury trials) may be postponed for now, many other aspects of cases are moving forward. With a big assist from technology, lawyers are able to do a lot while still social distancing. Motions and briefs are being drafted (and filed where possible), documents reviewed, depositions conducted and defended, mediations and arbitrations attended, telephonic conferences and hearings held.
One big adjustment is coming to terms with conducting and defending fully remote depositions where the parties, the lawyers, the court reporter, and (where applicable) the videographer are all in different physical places. While many of us have conducted partially remote depositions —where the witness, her lawyer, and the court reporter are in one room and the lawyer asking the questions is in another location; the fully remote deposition is a different animal altogether.
Based on some early results from our collective experience and others we have spoken with, we offer some warnings and suggested best practices (albeit based on a limited set of data) on conducting fully remote depositions.
Learn the Technology and Then Learn It Again
Fully remote depositions are only possible because of technology. There are a variety of solutions available for conducting such depositions — from proprietary platforms being offered by court reporting companies, to more widely available services such as Zoom or Google Meet. Along with this enhanced reliance on technology come a host of distinct issues and concerns that practitioners need take into account with regard to their platform of choice and, more generally, the fully remote nature of the proceeding.
If a platform crashes or if the audio is bad, it will ruin the deposition. Get to know the platform before the deposition to make sure that the service is satisfactory and that it works on the computers that you (and everyone else involved) have. Also, the audio and video quality are important drivers. With a remote court reporter it is imperative that the audio is as clear as possible, and it is important to check in during breaks to make sure that the reporter can hear and understand everything,
Obviously you cannot have a highly confidential deposition broadcast on YouTube or leaked to the world. It is critical to determine whether the platform you intend to use has the encryption and other security features that you need, like a unique key to enter the meeting. Parties may need to agree on a platform and security should be part of that discussion. There have been some recent security issues on some of the popular videoconferencing sites, and the FBI has issued a warning about “Zoombombing,” where ne’er-do-wells have infiltrated Zoom calls. That would certainly be a problem for a confidential deposition, although we understand that in the past two weeks Zoom has added some significant security features.
The ability to upload and share documents during a deposition may be critical, depending on the type of deposition. A good platform will allow the attorney taking the deposition to upload a universe of documents prior to the deposition but only introduce and mark those documents that she chooses to use during the deposition. This means that the witness and the opposing counsel will not get to see the universe of documents—only those that are used during the deposition. Also, selecting a platform that has the ability to write on, mark up, and highlight documents can be extremely helpful, again, depending on the nature of the deposition or the type of case.
The ability to communicate with lawyers on your side of the table is another important feature that some platforms have incorporated. Secure, privileged communications on platforms are the new post-it notes and are very useful.
Is the platform easy to understand? Will Gen-X and Boomer (and pre-Boomer) lawyers be able to understand and use the platform?
Practice, Practice, Practice and Organize
The critical thing to remember is that until you become proficient at remote depositions, you will have to be exceedingly diligent — particularly if you are the attorney taking the deposition. As a threshold matter, it is important to remember that the rhythm of the deposition will be different than a typical deposition; you need to be prepared for a bit of lag in the video or audio, as well as the logistics of ensuring that you can seamlessly introduce the correct documents at the correct time and be able to instruct the other lawyers, the witness, the court reporter, or videographer about how to handle the technology themselves. It is also important to understand all facets of the technology being used so that substantive missteps, e.g., sending a privileged note to the wrong people or uttering your deepest secrets when you think you are muted, can be avoided.
If possible (and palatable), run a practice session with all of the lawyers involved in the deposition so that everyone is up to speed with the platform, particularly in multi-party cases. This will help minimize problems during the actual deposition
Be as organized as possible. There will come a time when we have all done enough of these that they become seamless, but it is not yet that time. For now, impeccable organization is absolutely critical. Make sure your documents are in order, that you know everything about your technology platform, that you have a backup plan and a plan in case your backup plan blows up. Have everyone’s phone number and email address ready (including the court’s contact information), and have a backup conference call line ready to go if there are audio or other problems. If you are normally a seven in organization become a 10. If you are a four in organization, become a nine. If you are a two in organization, you might want to sit this one out.
Finally, a Plea
All lawyers have their own deposition personas. We think the world would appreciate it if we all turned those personalities down a bit during these difficult days. While the rewards of virtue are primarily spiritual, being obstreperous or exceedingly unpleasant has no place right now. Further, snark and similar hilarious qualities are often lost in translation (and even more so in remote translation), so it is best to keep it as plain vanilla as possible during these depositions.