Before the coronavirus pandemic, remote depositions were slowly gaining traction and popularity. In late March, social distancing measures dramatically increased the number of remote depositions. While the practice is still not considered ‘standard’, it has been adopted by many new users. Some litigants have even been compelled to submit remote depositions despite protests that they lacked the requisite technical expertise.
With remote depositions on the rise, you may be wondering how you can overcome your anxieties or concerns about the process. In this article, we’ll review important rulings about remote depositions, and we will also address the three most common reasons that some attorneys avoid them.
The Relevant Rulings
As of September 2020, every state and federal court permits remote swearing-in of witnesses and remote notarization. This means that the legality of the remote deposition cannot be called into question. Despite this, some defendants and opposing counsel may be reluctant to authorize a remote deposition.
In order to prevent significant delays (which place an undue burden on the injured plaintiff), courts have ruled that attorneys must show a compelling reason to delay discovery. This is perfectly illustrated by the case of Johnson v. Time Warner Cable New York City, LLC., wherein the judge ordered the defendant to proceed remotely.
So, given the flexibility of the medium, why are some attorneys still so hesitant to conduct remote depositions? We’ve listed the most common concerns below:
Concern #1: Performance Anxieties
In addition to their own performance anxiety, some attorneys will express concern that other participants will perform poorly in a remote deposition. For example, they may worry that the court reporter won’t be able to properly swear in the witness if they’re not physically present. To put your mind at ease, we suggest speaking with your reporter to learn more about their experience conducting remote depositions. Additionally, legal support services (like First Legal Depositions) can assist you in scheduling experienced reporters for your remote proceedings.
Concern #2: Technological Uncertainty
Unfamiliar technology can be daunting, but with the right preparation, you’ll enter your deposition feeling confident. The truth is, attorneys have an ethical obligation to be technologically competent and to take reasonable measures to safeguard client information. In order to fulfill this obligation, you may need to learn how to use new platforms.
If you’re concerned about technical troubles, request that all participants log into the deposition at least 15 minutes in advance. In fact, it’s always a good idea to budget more time than you expect to need. This ensures that you’ll have a bit of wiggle room to resolve any unexpected issues.
Concern #3: Witness Preparation
Many attorneys express concern that remote depositions will make it more difficult to communicate with witnesses. By planning a practice deposition, you can reduce the risk that your client will be caught off guard and become flustered by questions from opposing counsel. Take the time to practice switching between breakout rooms and group conversations. You’ll want to feel confident that you can advise the witness privately if necessary. Lastly, don’t forget to brief the witness about how documents and exhibits will be shared during the deposition. This is also a good time to review specific details the witness is likely to forget, like exact dates or the names of difficult-to-pronounce prescriptions.
Thanks for reading! We hope that we’ve helped ease your concerns about remote depositions. If you enjoyed this article, let us know in the comments and feel free to share it on social media. Finally, as you plan your next deposition, don’t forget to take advantage of our plentiful deposition tools, including conference calling, virtual exhibit management, remote court reporting, and video conferencing.