Trial Magazine

When the COVID-19 pandemic hit, videoconferencing became the go-to way to conduct essential legal functions, especially depositions. Here are some best practices for making sure your remote depositions run as smoothly as possible.

Selecting a Platform

Zoom has taken the world by storm, but many other options are out there, including Adobe Connect, Vidyo, RingCentral, Cisco WebEx, Join.me, Google Hangouts Meet through G Suite, GoToMeeting, and Skype for Business.¹ Each has some level of recording capability and live document, video, or presentation share. Plus, the pricing can offset Zoom’s ease of adoption, especially when it’s part of an existing subscription. You also can look into proprietary court reporting platforms specifically designed for taking remote depositions, such as Veritext Virtual or LiveLitigation.

Once you’ve selected a platform, review the security settings—these are evolving to meet new challenges, such as “Zoom bombing,” when uninvited strangers disrupt a videoconference because the proper security settings aren’t in place.² The most basic protection, which Zoom has already moved to “default” status, includes the “waiting room” process, which allows the host to screen attendees before allowing access. Likewise, the “lock room” tool permits the host to seal the attendance once everyone who is supposed to be there has joined.

With both good and bad players in the virtual space, you need to pay attention to the security updates and notifications generated on a nearly daily basis. And before you start actively using the platform, open a free account to run a test with the capture, share, annotation, and other tools.

Ahead of Time

No matter the platform you select, get your ducks in a row before you open that video meeting link.

The deposition notice. When you schedule a remote deposition, the notice should be specific about the location of the witness and the court reporter (if one is used), the participants (if other than the parties and the witness), whether the court reporter or notary will administer the oath remotely, and compliance with your jurisdiction’s other notice requirements. The notice also should specify the videoconference platform to be used and can include the specific link for the deposition.

Check connection points and speed. Test at every connection point (witnesses, reporters, questioning counsel) as soon as you schedule the deposition, using the exact equipment, location, and even room that each participant will be using to join the conference. You are creating numerous input points, and your weakest link can diminish your final product in ways you can avoid by resolving connection weaknesses beforehand. Ensure sufficient connection quality and speed, especially at the witness connection point where your most important video footage and audio will come from. Smartphones or tablets can connect to a videoconference on a cellular network, especially in metropolitan areas—however, these connections might not be high quality. Taking the time to ensure a strong connection pays off in uninterrupted flow.

Be prepared to provide a webcam. While most platforms universally connect to desktop computer, laptop, tablet, and smartphone cameras, a standalone webcam significantly increases video capture quality. The pricing varies, but you can get a quality webcam for under $100. Shipping a webcam to your witness before the deposition may be well worth considering for the best quality trial recording.

Check audio quality. Audio quality depends on room acoustics, not just the equipment. Connecting from a room with echoes, background noise, or interruptions are all avoidable problems. Another advantage of a quality webcam is an included microphone, which nearly always improves audio quality over the equipment embedded in a laptop, tablet, or smartphone.

Check the lighting. For the best video quality, you need good lighting and framing. Find a position with soft overhead lighting, and avoid backlighting or strong side lighting that create shadows. A ring light formed in the shape of a circle that faces the user can remove shading and help place the camera in the center of the shot—ensuring the witness’s face is well lit and easy to see. Pricing for these begins at just $30.

During the Depo

Once you’ve checked the boxes of what to do ahead of time, you’re ready to get started.

Slow down. Remember that neither you nor the witness can ever speak too slowly. Videoconferencing has an unavoidable lag time, and it is better to let it work with you than against you. Work on training everyone involved to pause before speaking by leading by example. Even if you think you are speaking too slowly, you really aren’t.

Limit background noise. When you are not speaking or questioning, using the “mute” button should be your default. Encourage everyone participating in the deposition to do the same.Pressing down the “space” bar offers a handy shortcut to let each user interpose an objection or short comment.

‘Spotlight’ the witness. If available, use the platform’s “spotlight” feature for the witness during the deposition. This will avoid the video switching between speakers on the screen.

Address objections. Multiple parties speaking at the same time ruins the video capture and the court reporter’s patience. Consider agreeing to reserve all objections or at least allowing a single objection by a party to preserve the objection for all parties.

Prepare exhibits. To make active sharing of exhibits during the deposition go more smoothly, save them in a separate electronic folder in the order you expect to use them. Consider using Dropbox, Google Docs, or another file-sharing platform so you can share your pre-marked exhibits with the court reporter, opposing counsel, and the witness at the beginning or end of the deposition.

Allow collaboration. Virtual depositions present a great opportunity to have your clients, cocounsel, and experts actively participate in the deposition process. Be sure they participate on mute and “video off.” Although you don’t want to receive a blizzard of texts or emails in real time while you question a witness, use breaks to touch base with your collaborators. They often are best situated to give you valuable inputs that can pay dividends. It also increases your clients’ confidence when they see your willingness to engage them in building the case.

Fortunately, technology was at least close to where we needed it to be when it unexpectedly came time to litigate our clients’ cases remotely. Having a basic understanding of the tools and rules for virtually performing trial prep work makes a big difference.

Michael Patrick Doyle is an attorney at Doyle LLP in Houston and Phoenix and can be reached at mdoyle@doylelawfirm.com. The views expressed in this article are the author’s and do not constitute an endorsement of any product or service by Trial or AAJ.

Notes

1. For more on setting up tech for remote depositions, see Brian D. Cook, Get Started With Remote Depos, Trial 16 (May 2020).
2. FBI Releases Guidance on Defending Against VTC Hijacking and Zoom-bombing, Cybersecurity & Infrastructure Sec. Agency (Apr. 2, 2020), https://tinyurl.com/w3mh9zp.