I recently participated in a roundtable on the topic of virtual depositions for the Minnesota Chapter of the Federal Bar Association’s Class Action, Mass Tort, and Multi-District Litigation Practice Group. The panelists, which also included magistrate judges and practicing attorneys, discussed our experiences with this remote format.
As it turned out, many of the experiences were positive: For instance, not having to fly around the country for just a few hours of deposition; the reduced wear and tear on attorneys and their clients, not to mention the cost savings; parties’ increasing comfort with virtual depositions now that so many courts have embraced them; and more.
Our conclusion? The panelists agreed that the benefits of virtual depositions may ultimately outweigh the drawbacks – to the point that we believe virtual depositions may very well outlast the pandemic.
Pros and Cons of Virtual Depositions
From a jury consultant perspective, the differences between virtual and in-person depositions present some novel pros and cons. I discussed with co-panelists a notable advantage for witnesses in virtual depositions. The experience tends to be less intimidating for many witnesses, and it can be harder for questioning attorneys to use the force of their presence, or style of questioning, to rattle the witness; the deposing attorney will be challenged to engage in a style of questioning that can put a witness in the “hot seat” in the same way as in-person depositions allow.
I also discussed with my co-panelists a few of the significant cons that I have observed. As a jury consultant, I pay attention to the psychology of the witness, not just the substance of their testimony. One of the cons of allowing witnesses to stay in their comfortable, home environments is that it may be psychologically easier to give in to their nerves and avoid preparing for what is, at best, a challenging and uncomfortable experience. Even witnesses who aren’t nervous may instead feel so comfortable in their own environment that they treat the experience too informally; this easy-going attitude can hurt their credibility or cause them to willingly volunteer too much information.
Things to Know About Taking Virtual Depositions
If virtual depositions really are here to stay, it is worthwhile to consider what needs to be done differently by attorneys to prepare their clients to put their best foot forward. Now that we are several months in and have helped clients take a high volume of virtual depositions, we wanted to offer some of our top preparation tips:
- Don’t assume the witness understands how important it is to be in the right setting. One of the things we lose with virtual depositions is the ability to control the setting. We have heard of witnesses assuring counsel that they will be ready for their depositions – and ending up testifying from their car on the way to work, or from their busy office with people interrupting every few minutes. Attorneys should therefore insist that witnesses have a room free of distractions and take the step to review the setup with them in advance.
- Encourage your witness to use a two-screen setup to minimize distracting eye movements. It can be hard to look at one fixed point while being deposed online. But because the session will most likely be recorded, you’ll want to limit how much the witness is tempted (or forced) to look around, as this behavior can damage their credibility in jurors’ eyes. Having two screens can allow one screen to be designated for shared documents, and the other for displaying the questioning attorney on Zoom (as opposed to clicking between windows, searching for the right buttons, etc.). On the Zoom screen, a good trick is also to “pin” the questioner and hide any non-speakers, so the witness’ eyes aren’t tempted to dart around.
- Practice with the technology before the deposition. Witness and attorney should be comfortable using the technology before questioning begins, especially if the deposition will include exhibits. The attorney might consider asking the service providing the virtual platform for a test login, so that both parties can practice.
- Work out a plan to communicate with your witness between testimony. Try to be in the same room as your client, whenever that is possible. If not, work out how you will connect at breaks over the phone. Some witnesses really benefit from a few words of encouragement from their attorney during their deposition. Working out the plan in advance can give your witness some added confidence.
- Does the witness have any notes? Virtual depositions where the witness is in their home office, or at their place of work, raise some grey areas about what material is near at hand and should be produced during the deposition. It is therefore important for the attorney and witness to have a conversation in advance about what should be allowed, and what to keep out of the room before a deposition begins.
- Nonverbals matter more than ever. The facial communication of the witness is especially prominent since many virtual depositions are taken where the witness sits close to their laptop or webcam. Imagine a witness’ eye-roll of disgust, writ large and displayed on a 20’x20’ screen for the jury.
- Have your witness take a beat before they answer. Good listening goes a long way during deposition. However, one of the challenges of the technology used in virtual depositions is that it can be hard to hear if two people begin speaking at once. A witness may therefore miss the full question being asked, or an objection being made by their attorney. A simple tip to the witness can help: Ask your witness to practice carefully listening, and to take a breath of air before beginning their answers. This will ensure they take a moment to consider the question, and will provide space for their attorney to make a speaking objection. If you work with your witness in advance, they can also learn to hear your objections as a sort of hint for how they could answer the question that was asked.
Dealing with the “cons” of virtual (or in-person) depositions is often where my work as a jury consultant comes in to help attorneys prepare their witnesses. It can be helpful to have a consultant who can help play “bad cop” or help ease a nervous witness. After all, much of witness credibility comes from confidence. Our experience collecting mock-juror feedback about witnesses arms us with skills and techniques to help each witness put their best self forward in the challenging environment of the virtual deposition. Let our experience help you prepare your clients for their next virtual deposition.
Note: It can be a challenge to keep up with all of the changes in courts around the country related to the pandemic, and that includes how remote depositions are being handled. The following link, provided by a co-panelist, is a good resource to examine the various state and federal authorities that govern depositions done remotely and whether remote oaths are accepted, organized by each state: https://www.perkinscoie.com/en/news-insights/us-remote-deposition-and-oath-status.html.
By: Keith Pounds, Ph.D. – Senior Consultant