8 hours of deposition, 18 hours of travel time.
We’ve all done it. Buy a plane ticket, reserve a hotel and a car, and slog to conduct a deposition in a remote part of the country (or the world). An eight-hour deposition (or sometimes less) becomes a two or three day affair. You’ve probably had to carry several boxes of documents, and at the end of the trip you’re beat. And of course your client has to endure many thousands of extra dollars of travel costs. With the ubiquity of inexpensive, high-quality internet video conferencing technology such as Skype, Google Hangouts, and many more, it seems like travelling more than a few miles to a deposition should be a thing of the past. But it’s not, even though it is becoming more common for courts to expressly allow videoconference depositions.
3 Reasons Lawyers Avoid Videoconference Depositions
Despite the prevalence of video conferencing solutions, many lawyers refuse to employ videoconference depositions. Three of the most common objections are:
- “I need to observe all of the witness’s nonverbal reactions and cues”
- “I need to control the documents so the opposing counsel and the witness cannot study them ahead of time.”
- “What if the technology breaks down?”
These are all valid and reasonable objections, but each one can be addressed. And, as I’ll explain below, there are some key benefits to videoconference depositions other than cost savings.
Observing the Witness Closely
Clearly the deposing attorney needs to be able to see the witness’s demeanor and nonverbal reactions. But even inexpensive webcams broadcast in 1080 HD, so it should not be difficult to get high quality image and sound. A more valid concern is that, depending on how the witness is positioned in front of the camera, the deposing lawyer may miss certain cues that are not on screen. For example, you would not see fidgeting or hand wringing below a conference table. Another related concern is that you may not see someone behind the camera giving the witness cues. There are a few solutions that would certainly cost less than travelling to see the witness.
- Arrange for the witness to be seated away from a table so you can see them head-to-toe.
- Use multiple cameras so you can see everything. This might even mean you have a camera off to the side so it can see above and below the table. If you also put a camera behind the witness you can ensure he is not receiving any improper cues.
- Hire a law clerk or legal assistant from a nearby law firm to act as local counsel and observe the proceedings in-person. In nearly every case you would be able to hire a (less expensive) non-lawyer to perform this task. This person would be able to alert you if they see anything noteworthy such as slight fidgeting or cues from other people.
Need to control the documents
If you use paper then this issue becomes a real concern. You may have 1000+ pages of exhibits that you have to ship to the witness. And no matter how hard you try to give the court reporter instructions, it is very likely that the entire box(es) of documents will find their way to the witness and opposing counsel before the deposition starts. The last thing you want to do is afford the witness time to review your documents and give them a chance to concoct answers before you begin asking questions. Fortunately there is a simple solution: go paperless. If you use paperless exhibit technology, such as AgileLaw’s software, then you reveal only the documents you want to reveal during the deposition. The court reporter, witness, and opposing counsel receive only the documents you reveal when you reveal them. This happens during the deposition on their laptop or tablet in real time. The software also handles marking exhibits. If you employ paperless exhibit software then you save on the cost of printing and shipping AND you prevent the witness from getting additional prep time with your documents.
The concern about technology breakdown is real, but usually solvable. In videoconference depositions the most likely failure is an internet problem. There are several solutions.
- First, you need to have a local person test the internet in the proposed deposition location. But do not wait until the day of the deposition or the day before. Test it weeks ahead of time. That way if the internet is slow or unreliable you have the option to obtain another location with better internet. Also do not rely on your opposing counsel to test the internet. You do not want to have to complain to a judge that it’s the opposing counsel’s fault. That argument will not go far.
- Second, send a wi-fi hotspot to the location. If another location is not an option, or if the internet goes down without warning then the hotspot – which runs on the mobile carrier frequencies like AT&T and Verizon – provides an excellent backup. Today’s 4G speeds are plenty fast to handle streaming audio and video.
- Third, get help from local companies. With a phone call or two you should be able to find a local technology company that can give you options to ensure you have a solid internet connection. And finally, work before the deposition to obtain consent from opposing counsel that technology problems are cause for postponing the deposition. It usually will be a lot easier to that consent before it becomes an issue rather than afterwards.
2 Reasons Lawyers Should Embrace Videoconference Depositions
Time & Cost
Videoconference depositions can save you days of your life and your client thousands of dollars. If you haven’t figured that out yet then you should stop reading and go find a nice shiny object to entertain yourself.
One (sometimes unwritten) rule in many jurisdictions is that a single lawyer for each party in a suit is allowed to question a witness. You cannot have multiple lawyers for one party ask questions of a single witness. This rule applies in both depositions and trials. The way around this rule is to have co-counsel, clients, and experts pass notes to the questioning attorney. That works, but it’s disruptive, slow, and sometimes the questioning attorney does not ask the question properly because something gets lost in translation from the scribbled note. But if you conduct a videoconference deposition then you can set up your space so other lawyers sitting in the room can easily feed questions to you. When the witness and opposing counsel are in the same room (in-person depositions) this practice can also be done, but it is more difficult because you have to pass notes or whisper the questions and its difficult or impossible to have any real dialogue with co-counsel. So you either pass illegible notes or leave the room to talk. When you’re remotely connected on the internet you can just go off the record, put the microphone on mute, and consult freely with co-counsel or an assisting expert witness. (Just make sure you’re on mute!) A ten second verbal discussion with co-counsel can be more productive than 3 minutes of note scribbling back and forth. In this respect conducting a videoconference deposition remotely can add quality to your questions because it allows for greater collaboration with people who will be assisting you.