The coronavirus pandemic has impacted our legal system at all levels. One significant change has been the move from in-person depositions, mediation, hearings, arbitrations, and trials to those conducted by remote video. While attorneys, judges, and litigants can debate whether this change is positive or negative, it has taken place. This piece draws from experiences gained during the pandemic to better prepare you for an appearance by remote video at either a deposition, hearing, or both.
What is a deposition To better understand what a deposition is,
what goes on in one, and how to prepare generally you may refer to my article on what you need to know before being deposed.
In short a deposition is an interview about what you of the allegations in the lawsuit. The opposing side's attorney asks you as the deponent questions and you answer them unless your attorney instructs you otherwise. Depositions in Florida are transcribed by a court reporter and can also be recorded on video with prior notice.
Thus, we have always had the ability to record a deposition by video but now all parties involved can appear by video from separate locations and the court reporter can verify the identity of the witness and swear the witness remotely. How does a remote video deposition differ from video depositions of the past In the past all parties involved in a deposition would be in the same room. If the deposition was recorded on video there would be a separate videographer for that and the video could later be synchronized with the transcribed transcript or simply used by itself. The reason why prior notice of the video recording had to be provided was to allow the deponent to dress appropriately as if he or she were in the courtroom.
Video depositions cost more than a non-video deposition because of the videographer costs. There are different theories and strategies on when to use a video deposition but most commonly they have been used where a key witness, such as an expert, will not be available to travel to the trial and it may be more impactful for a jury to see the witness on a large screen in the courtroom. Video also captures body language, which is a component in weighing the believability of any witness.
The pandemic has allowed all depositions to be taken through the medium of video. These are not video depositions in the traditional sense because they are not necessarily recorded. These are remote video depositions using software like Zoom or another provider.
Taking depositions by remote video is a preventative measure so that the parties to the deposition are not in close quarters for several hours which may increase the risk of contracting the virus. This change has made it very convenient for parties to participate in depositions and largely eliminated the travel costs that attorneys commonly charged for attending depositions. How should you prepare for a remote video deposition First it is important to be in a location where you will have stable internet access free from background noise and interruptions. Although the deposition may not be recorded on the video it is still being transcribed by a court reporter. To have an accurate record of what you say the court reporter needs to be able to hear and see you.
At the start of the remote video deposition the court reporter must verify your identity in order to administer you an oath to tell the truth. This process is called swearing in the witness. Therefore it is essential to have some form of official identification at the ready. A driver's license, passport, or other government issued identification will suffice. In that manner the court reporter can verify that you are who you say you are.
A stable internet access is critically important as well. If your internet access is unstable your transmission may be interrupted or dropped. This can lead to the court reporter not hearing your full answer and not transcribing an accurate response. On one hand the attorney asking the questions wants to obtain certain information but you as the answering party also want to ensure that your answers are properly and fully recorded.
An unstable internet connection would be like getting up and walking out of the room during your answer which would be unfair to you as your full answer would not be heard or transcribed. Also with an unstable internet connection you may not hear the full question or hear it clearly leading to you answering a different question. This may make you later look evasive or uninformed about the topic. In other words, it will make you appear less credible.
It is also advisable and wise to verify the software you are using in advance of the deposition. If you are using Zoom, for example, the time to find out that you have not registered is not the beginning of the deposition when you try to connect to it. Information about how to attend and access the remote video deposition is provided in advance to all parties. It is wise to verify your registration for the software and ability to use it well in advance. If any issues arise they can easily be addressed at that point instead of at the start of the deposition.
As to the device to use that depends on what you have available but using a computer instead of a phone or tablet may be easier. During a deposition oftentimes the party taking the deposition will show you a document or may ask you questions about a document that you will want to see before answering or to assist you in answering. Using a phone may make it harder for you to see such documents and a tablet may not have the correct software to allow you to view the document. Using a computer particularly one with a larger screen will make it easier for you to see any documents presented during the deposition. Where should you be for a remote video deposition You will want to be in a quiet location that is free from interruptions and excessive background noise. You do not have to create a virtual recording studio with lighting but a location such as an office or home office will generally suffice. Accessing the software in advance of the deposition will allow you to verify your sound and microphone levels, develop some comfort with the software, and see yourself on video to check lighting levels.
It is not advisable to attend a remote video deposition from a car or other moving location. Not only is the internet connection often unstable for the video but the distraction of trying to drive while participating in a deposition may lead to an accident and may even be illegal depending on where you are located. Attending a remote video deposition from a moving car or public venue like a coffee shop also sends a negative signal that you do not care much about the event. While that may be your true feeling it can reflect poorly on you as a witness and can even lead to a cessation of the deposition and a later order by a judge for you to attend a reconvened deposition from a more appropriate location and to pay for one or both of the depositions.
Your deposition is also a private event. Unlike a court hearing it is not open to the public. There may be questions asked of you that are intensely personal in nature. The questions may also elicit personal information like your social security number, date of birth, and address that can be used by others to steal your identity. Participating in a remote video deposition from a public place like a coffee shop would allow anyone nearby to overhear your testimony and to obtain your personal information. What should you wear for a remote video deposition Your clothing is a personal choice but dressing in business or business casual attire would be appropriate. The video only shows a limited view usually head and chest depending on your camera which is another reason to test your software in advance of the deposition or hearing to see how you appear on the video.
Many amusing and odd stories have circulated in the news during the pandemic of participants in depositions and hearings. A few that stand out are the attorney who attended a court hearing in Ft. Lauderdale from the deck of his pool and the attorney in Texas who appeared in court with the face of a cat and could not turn off the filter. Other stories from across the nation have been of participants in depositions not wearing anything below their waistline and standing up at a break to leave their computer and providing everyone attending with quite a view. The takeaway is that you do not want to be an anecdote or inadvertently expose yourself so it is best to dress appropriately, be aware of your surroundings and the software, and test the software well in advance of any deposition or hearing so you present yourself in an appropriate and professional manner.
