“You’re muted” seems to be the lawyer's catchphrase of the pandemic, most notably during virtual depositions. Reminding witnesses and fellow attorneys to either unmute or mute themselves or turn on their video cameras is something all attorneys can relate to two years into this pandemic.
There has been an inevitable shift in the handling of cases since the pandemic began. One of the most noticeable changes has been in conducting depositions. Attorneys went from obtaining in-person testimony, reading a witness’s body language, and analyzing a plaintiff’s physical condition to playing detective through a screen. Trying to read cues through a computer; camera shut-offs for breaks; and “screen sharing” to review exhibits has become the new normal.
In a lot of ways, and especially for defense attorneys in the general liability world of voluminous medical records and lengthy lease agreements, virtual depositions have posed difficulties. There is no doubt that attorneys do not get a complete sense of a plaintiff’s physical condition behind a computer screen. When conducting virtual depositions, attorneys rarely see the plaintiffs up and moving as screens are turned off during breaks. As the environment is inevitably more “casual,” the credibility of witnesses is hard to assess through a screen, making it difficult to measure how a witness may present before a jury in a trial setting. Technology, while helpful and convenient has created its own challenges during virtual depositions – frozen computer screens make for jumbled testimony and missed objections and technologically unsophisticated witnesses and lawyers are often at a disadvantage trying to screen share or view exhibits.
Potential ethical violations come more readily into play during remote depositions as attorneys must wonder whether a witness is reviewing documents during questioning; whether a witness is communicating with their attorney while being deposed; or even whether a third party is in the room with a witness. This could raise larger issues concerning waiver of the attorney-client privilege if it is later discovered that a third party was present at the time of questioning. This is true whether deposing a plaintiff or co-defendant or defending one’s own client.
From a defense counsel point of view, not having your own client in the room with you often makes a client uncomfortable and seems to weaken the historically strong attorney-client relationship
However, much like the pandemic allowed us to move at a slower pace, appreciate the smaller things, and even learn a new hobby, the new age of virtual depositions has not proven to be all negative. They are certainly convenient. All parties and witnesses can be separated by time zones and yet all come together behind their screens at 10:00 a.m. EST to conduct a single deposition. Parties have the opportunity to pre-mark exhibits for often a more seamless deposition.
Screen sharing seamlessly allows for photographs and documents to instantaneously and concurrently be shown to all deposition attendees. The questioning attorney can view their own notes on their computer screen during the deposition without concern that all individuals in the room can see them (so long as you remember to stop screen sharing). Virtual depositions are also easy to coordinate. Lengthy travel, other than to your home office or living room couch, is almost non-existent. As such, this creates massive savings for clients who no longer receive bills for extensive travel to and from depositions.
Comment: For the most part, remote depositions have shown to be extremely efficient and effective. While the 2020 pandemic forced litigation into a remote world, virtual depositions are not going away any time soon. While the drawbacks are real and not every case will best be served virtually, remote proceedings can and should continue to be used in those situations where litigation will be more efficient and cost-effective. Despite the aforementioned concerns that can arise during virtual proceedings, virtual depositions are here to stay:
- they are easier to coordinate;
- screen sharing technology makes it possible for exhibits to be introduced as if all parties were in the same room;
- they are less costly for clients and law firms as the costs of travel, rental space and copying expenses are almost entirely eliminated;
- they are quicker to conduct, and litigation overall can proceed at a quicker pace;
- they are convenient and more efficient than in-person depositions;
- they allow for testimony of ancillary witnesses that previously weren’t worth the time or expense;
- they allow opportunities for junior attorneys to more readily observe proceedings;
- they prove to be a great resource for attorneys and other legal experts who cannot be physically present; and
- they promote flexibility and a work-life balance many have been seeking since before the pandemic arose.
What began as a temporary shift in the legal world to prevent the stall of cases now translates to lasting changes. I think it is safe to say that virtual depositions will most certainly outlast the pandemic.