“YOU ARE MUTE” – The virtual era of depositions | Weber Gallagher Simpson Stapleton Fires & Newby LLP

“You’re on mute” seems to be the pandemic lawyer’s catchphrase, especially during virtual depositions. Reminding witnesses and fellow lawyers to unmute or mute themselves or turn on their video cameras is something all lawyers can relate to two years into this pandemic.

There has been an inevitable shift in the handling of cases since the start of the pandemic. One of the most notable changes was the conduct of depositions. Lawyers have gone from obtaining testimony in person, reading a witness’s body language and analyzing a plaintiff’s physical condition to playing detective roles through a screen. Trying to read signals through a computer; camera stops for breaks; and “screen sharing” to review exhibits has become the new norm.

In many ways, and especially for defense attorneys in the world of general liability for voluminous medical records and lengthy leases, virtual depositions have posed challenges. There is no doubt that lawyers do not have a full picture of a plaintiff’s physical condition behind a computer screen. During virtual depositions, lawyers rarely see plaintiffs get up and move because screens are turned off during breaks. As the environment is inevitably more ‘casual’, the credibility of witnesses is difficult to assess through a screen, making it difficult to measure how well a witness can perform in front of a jury in a trial. Technology, while useful and convenient, has created its own challenges during virtual depositions – frozen computer screens lead to confusing testimony and missed objections, and technologically unsophisticated witnesses and lawyers are often at a disadvantage in trying to share screens or view exhibits.

Potential ethical violations come into play more readily during remote depositions, as attorneys must consider whether a witness is reviewing documents during questioning; if a witness communicates with his lawyer during his testimony; or even if a third party is in the room with a witness. This could raise larger questions about the waiver of solicitor-client privilege if it is later discovered that a third party was present at the time of the interrogation. This is true whether deposing a plaintiff or co-accused or defending one’s own client.

From the defense attorney’s perspective, 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, just as the pandemic has allowed us to move forward at a slower pace, appreciate the little things, and even learn a new hobby, the new era of virtual depositions hasn’t turned out to be entirely negative. They are certainly practical. All parties and witnesses may be separated by time zones and yet all meet behind their screens at 10:00 a.m. EST to give a single deposition. The parties have the possibility of pre-marking the exhibits for an often more fluid filing.

Screen sharing makes it possible to instantly and simultaneously show photos and documents to all participants in the deposition. The interrogating lawyer can see their own notes on their computer screen during the deposition without worrying that everyone in the room can see them (as long as you remember to stop screen sharing) . Virtual repositories are also easy to coordinate. Long commutes, other than to your home office or living room couch, are almost non-existent. As such, this creates massive savings for customers who no longer receive bills for long trips to and from depots.

Comment: For the most part, remote depositions have proven to be extremely efficient and effective. While the 2020 pandemic has forced litigation into a distant world, virtual depositions aren’t going away anytime soon. While the disadvantages are real and not all cases are best served virtually, remote proceedings can and should continue to be used in situations where litigation will be more efficient and cost-effective. Despite the aforementioned concerns that may arise during a virtual proceeding, virtual depositions are here to stay:

  • they are easier to coordinate;
  • split-screen technology allows exhibits to be presented as if all parties were in the same room;
  • they are less costly for clients and law firms because travel, space rental and copying costs are almost entirely eliminated;
  • they are quicker to conduct and litigation as a whole can proceed more quickly;
  • they are convenient and more efficient than in-person depositions;
  • they allow the testimony of auxiliary witnesses which previously were not worth the time or expense;
  • they make it easier for junior lawyers to observe proceedings;
  • they prove to be an excellent resource for lawyers and other legal experts who cannot be physically present; and
  • they promote flexibility and a work-life balance that many have been seeking since before the pandemic hit.

What started as a temporary shift in the legal world to prevent cases from stalling is now translating into lasting change. I think it’s safe to say that virtual depositions will most certainly survive the pandemic.

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