Trial Magazine

I’ve been a plaintiff medical negligence and catastrophic injury litigator for more than 20 years, and for most of that time, my life was a series of trains, planes, and automobiles across the country to take and defend expert depositions. I spent more of my life in transit than in my home city, and I can tell you the details of just about every airport in the country—which I used to wear like a strange badge of honor.

Enter COVID-19. By the time this article is published, I likely will have taken or defended more than 90 remote depos. I love them—here’s why you should too and how to get the most out of this virtual environment.

First, remote depos can lower case expenses. Litigating complex cases, such as medical negligence cases, is a tightrope walk between spending as little as possible and doing everything necessary to pursue the case. This is hard in states such as North Carolina, where I am based, because expert witness qualification laws make it difficult in big cases without a multitude of expensive expert witnesses among the parties, all of which require deposition. But remote depos allow you to get more for your clients for less.

Many of us—including my law partner and I—are moving to a more remote office model, even as the pandemic winds down. So rather than tons of office space to accommodate staff, conference rooms, and industrial copiers, what you really need is access to a conference room for those depos and mediations that are not done remotely—meaning your overhead expenses are gutted.

Before the pandemic, we all slogged to our cars and headed to our offices or the airport for our day of work. Now, with the option of remote depos, we’ve gained time—the one thing plaintiff’s side litigators never had. What can you do with that time? Some of us will use this time to plug back into our other cases, while others may choose to focus on personal endeavors. I get far more done now. We all can be more efficient and effective with remote depositions.

Setting Parameters

At the outset of your case, especially if your case is one that requires or has the option of a discovery scheduling order (DSO), discuss using remote depositions with the defense and agree on parameters. Below are some agreements to consider making.

All depositions are remote. Ask opposing counsel to agree to include in the DSO that all depositions will be remote. We request the following language: “All depositions permitted under this Order shall be taken remotely and not in person, except that the counsel who has designated the testifying witness may, but is not required to be, present with the witness as he or she testifies.” We also include language discussing what to do in the unlikely event that the parties
cross-designate the same witnesses.

Accommodation for remote depositions. If the parties cannot agree to conduct all depositions remotely, there is no reason you cannot at least conduct the ones you request in that manner. We include the following DSO language: “At the request of any party, the deposition of any expert witness may be taken by video- or web-conference, and, in the event of such a request, the party offering the witness will use reasonable effort to make the witness available for a video- or web-conference deposition.”

Any notary. Agree that the witness may be sworn in by video from any location.¹ That way, if your court reporter is in your state, the witness is in another state, and opposing counsel is in a third state, the court reporter may swear in the witness virtually.

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To avoid witness-coaching issues, agree that everyone attending from the same location will attend from a separate computer.

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Separate screens. Agree that everyone who attends the deposition from the same location as the witness will attend from a separate computer. This helps you be aware of what is happening in the room when multiple people are present. It also can help avoid any witness-coaching issues.²

Our firm recently began working with a court reporting agency that reads several “acknowledgements” into the record before beginning recorded remote depositions. Those include that

• the court reporter is not physically present in the proceeding room
• the proceeding is being reported remotely
• in lieu of an in-person oath, the witness has provided his or her identification via videoconference and will verbally declare that his or her testimony is under penalty of perjury.

Once these are read, the reporter asks that each counsel consent to the arrangement and waive any objections to that manner of reporting. The reporter then asks each counsel to indicate agreement by stating their name, their agreement, and whether anyone else is present in the room with them. So far, in every deposition, all counsel have agreed to and appreciated these terms.

Getting the Tech Right

Although I am computer savvy, I was nervous before my first remote depo. I was deposing a defendant in a catastrophic birth injury case, and I had fetal monitoring strips in nine separate digital pieces. I was unsure how to manage the exhibits remotely while taking the deposition. But I did it. Now, closing in on my 100th remote deposition—multiple court reporting services and court reporting concierge options later—here is what I’ve learned.³

Choosing a background. I conduct a day-of-deposition check-in with my witnesses via remote format to ensure their attire and background are appropriate. The background should be appropriate for the jury but also not a free look into witnesses’ homes or offices. I have found two easy solutions for backgrounds: a professional image—such as a picture of my city with my firm’s logo superimposed on it—or the blur option so that no one can see what is behind the witness. Either of these options will make you and your witness appear professional and prevent the defense from snooping during the deposition.

If you are using Zoom, you can adjust your background by clicking on the “Settings” wheel in the top right corner of the box and scrolling to “Background & Filters.”⁴ If you have created a background, click the add button (the square with the cross in it), click “Add Image,” and select the image from your computer’s folders. To blur your background, simply select the “Blur” option. Your image or blur option will be set as the new default background until you change it.

Don’t spend extra money on a concierge or videographer. If you do remote depos right, they result in a nice and inexpensive video that you may be able to use with the jury. Always check the rules of your state to ensure that depositions recorded in this manner are permissible at trial. The answer to that question may vary by state.

My firm has worked with three court reporting agencies for remote depos. Two of those agencies charged for a videographer to videotape the remote depo over the computer—and one even charged for a concierge to sit through the entirety of the depo to assist with exhibits and any technical issues.

Our current agency records depos via Zoom⁵ and does not charge for any concierge services. The deposition exhibit process with them is simple, and the result is a video showing exhibits and the witness without the cost of a videographer or the necessity of a concierge.

Use exhibits to your advantage. You do not need a concierge or expensive exhibit management service to mark up and highlight exhibits with the witness. Before (and sometimes during) each deposition, I send the court reporter the exhibits that I want to use by email or by uploading to a link. During the deposition I reference the exhibit I want to use by name, and the court reporter puts the exhibit on the screen, adds an exhibit sticker, scrolls through the exhibit, and annotates it with highlights or circles or whatever else the witness or I request. The court reporter also can give you or the witness access to the exhibit through the remote depo platform and you can highlight, manipulate, write on, move, or do anything you want to the exhibit during the depo.

If you are concerned about how to do this, contact your court reporters and ask them to set up a brief practice remote session—you’ll be able to practice at no charge. If they refuse to do this for you, you should not be using them in the first place. I did this before my first remote deposition, and it made me much more comfortable.

If you want even more control and do not want to share your exhibits before or during the deposition with your court reporter, you can use the remote platform to show your own exhibits, manipulate them, and even give the witness access to them. To share an exhibit through Zoom, simply have the exhibit up on your screen and click the “Share Screen” option at the bottom of the Zoom screen. Select the screen or document you want to share, and you can then move it around for the witness.

To annotate the exhibit, simply click the “Annotate” button that appears at the top of your screen with the exhibit, as well as the tool you want to use to annotate. If you want your witness to manipulate the document or annotate it, give him or her access using the share option to the left of the “Annotate” option you just clicked. To stop sharing, simply click the red “Stop Share” tab.

Tech Troubleshooting

As with anything that requires a computer, technology glitches occur. Here are some tips to prevent or address common issues.

Turn off email dings and cell phone rings. This is quick and will protect the quality of the video and professional nature of the deposition. There is nothing worse than being in a deposition during critical testimony and hearing someone’s email ding every few minutes.

Turn off auto-hands. If you attend via iPad, there is an option that permits the iPad to sense your hand movements—if it senses that you are raising your hand or giving a thumbs up, it will raise your digital hand or do a digital thumbs up on the Zoom, distracting everyone. Turn this off before any Zoom depo you attend by clicking on the Zoom “Settings” wheel, then clicking “Meetings,” then scrolling down to “Automatic Reactions” to be sure “Raise Hand” and “Thumbs Up” are off (not green).

Avoid accidentally oversharing. If you decide to share your screen for any reason during the deposition, have nothing else open on your desktop that shouldn’t be seen by depo attendees. For instance, do not have your deposition outline open on your desktop in addition to the exhibit you are trying to show. Or save yourself from this worry and have your court reporter handle the exhibits.

Avoid connection glitches. Many people’s greatest fear is not being able to connect to the Zoom room or being kicked off the Zoom and unable to get back in. I’ve had lots of glitches along the way, but here are some things I’ve learned.

• Have sufficient internet. Check that your internet is sufficient to accommodate Zoom depositions.6 Often, court reporting services will offer you an opportunity to do a test Zoom in advance of your deposition at no charge to ensure your internet and system are appropriate for the platform. If you want to be double covered, consider having a hotspot available as a backup—your cell phone can serve as a hotspot in a pinch. Also connect to your best network option—my Zoom works better when I am on my 5G versus 2G option.
• Restart your computer before the depo. Do not leave your computer on all the time and then think you won’t have a glitchy Zoom deposition. A quick restart of your computer before jumping on Zoom can help avoid problems.
• Turn off your sound. If you are in the room with your witness during the remote depo and there is a reverberation when you or the witness talks, turn the sound off on your computer. Just be aware that you’ll have to object loud enough to be heard through your witness’s computer sound system.
• Test it. Test the link at least 30 minutes before the depo. Sometimes you must log in with credentials, and sometimes the link doesn’t work. Leave yourself enough time to resolve any issues—or to contact the court reporter for help—before the deposition.

I’ve raved about remote depositions, but be aware of a few challenges they’ll present. For starters, you won’t be looking the witness in the eye across the table. As a big believer in being eye-to-eye with the person I am deposing and the witness I am defending, this worried me at first. I also had concerns that my witnesses would be chattier in their environment versus in a conference room.

What I learned is that with proper preparation, you do not lose much by not being in person. On the contrary, I believe my witnesses gained credibility by me not being present—we don’t need to sit beside our witnesses for them to tell the truth of the facts and their opinions. And we don’t need to be with defense expert witnesses to unravel defenses. What we need is to prepare, which we should be doing anyway.

Remote depos are here to stay. Learn to embrace them and in the process, you’ll also lower your clients’ expenses and your overhead. Once you fully realize the advantages of remote depositions, you may never go back.

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Kristen L. Beightol is an attorney at Edwards Beightol in Raleigh, N.C., and can be reached at klb@eblaw.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.

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Notes

1. Mark Kosieradzki, Staying Within the Lines in Remote Depos, Trial, Aug. 2020, at 24.
2. Id.
3. For more tech tips, including advice on hardware, see Michael Doyle, The New Normal: Best Practices for Remote Depos, Trial, June 2020, at 30; Brian Cook, Getting Started With Remote Depos, Trial, May 2020, at 16.
4. Zoom is a useful platform that has, in my experience, been most widely used. But other platforms, such as Microsoft Teams, have worked similarly. While different platforms offer different options for backgrounds and different buttons to click for different views, I have largely found the different platforms to function similarly for my purposes.
5. This agency reads the above-referenced language prior to beginning the recording.
6. To see the parameters required for Zoom, visit https://tinyurl.com/22za6czz.