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Remote Depositions Post COVID

Remote Depositions Post COVID

 

By Guest Author:
Carrie O. Titus, Esq.
National Director of Litigation, Asbestos Group Practice Leader | PohlmanUSA
Ph: 314.678.5803 | Carrie@pohlmanUSA.com

 

Lawyers want business as usual, but earlier this year a little thing known as COVID-19 changed the horizon of litigation across the globe. Not only did it alter how you interact with clients, but it shifted the way attorneys and judges participate in depositions and hearings. As an attorney who has not been actively practicing for nearly two decades, it’s difficult to imagine the angst and challenges brought on overnight to those colleagues who participate in discovery every day. As most attorneys do, I still want to feel in control. And I understand how the uncontrollable nature and timing of the COVID-19 impacted the legal industry. Along with understanding how attorneys think about technology – okay maybe not all of us, but enough of us – I put myself back in your shoes and am sympathetic to the need to use unfamiliar technology in a crisis mode. I feel your apprehension. The immediate need to be educated on this “new” technology that became suddenly essential to do your job is overwhelming. Not only is it vital to be confident in utilizing these new tools, but preparing your clients for their depositions without counsel in the room can also be difficult. These challenges are ones most attorneys had not been presented previously in their careers. While many of you were hoping in person depositions would be quick to return, here we are, four months later. The introduction of the Remote Deposition and Virtual Hearings setting is past and its normalcy is here. As time continues, the impacts of COVID-19 on deponents, travel options, and attorneys, are replaced by the need to hit case deadlines.  Each case and Judge bring a unique set of influencers and criteria in conducting remote depositions and hearings.

Being an attorney who would have fought the notion of conducting a hearing or deposition without being in person, I am intrigued by the capabilities and opportunities that remote options now provide. Outside of the obvious positive (no chance of exposure to COVID-19), there are many benefits to holding events that were previously in person, now remotely. These include saving client costs, reduced travel time, and more time a standard workday to manage other client matters.

But, as with using any technology, there are potential challenges to consider. If you had experienced a remote court appearance or deposition pre-COVID, it was likely with only a few participants. Post COVID-19, depending on the type of litigation, you could have 30+ attorneys appearing remotely via videoconferencing for a court hearing or deposition. The mere change in the numbers, both in overall use of internet as well as in the increase of parties participating in individual events, causes the potential for obstacles such as audio feedback, reduced capacity internet speeds, speaking over each other, sharing exhibits, and coordinating appearances for all of the parties. All can result in poor quality of the transcript, not to mention added stress to you during the deposition.

Additionally, you must consider how the other participants (especially if a judge is participating as well), are perceiving your mannerisms, dress, and non-verbal expressions.

Here are five suggestions to be conscious of when joining a Remote Deposition or Hearing Post COVID-19:

  • Bandwidth/ internet speed and reliability on any of the participants’ ends can affect your experience. Minimize other forms of streaming in your home during the deposition (i.e. Netflix, online gaming).
  • Limit distractions in your setting (visual, noise and other people/animals). Turn mics and ringers off on any phones and speakers not in use.
  • Have the exhibits you will be presenting easily accessible and practice sharing them. If you are sharing your screen, close all other programs, including your email.
  • Webcams can make or break a remote deposition. Make sure you can see the witness clearly and if your webcam is in use be sure you are centered on the screen.
  • Be prepared for how you will control any breakout or secondary meetings/ conversations during the deposition.

Participating in a remote legal proceeding, whether a deposition or hearing, has a number of advantages but also risks. With the right amount of planning you can benefit for the positives and avoid the potential troubles.  Take the time to determine what is best for your needs as remote proceedings may be here to stay, in one form or another, for quite some time.