Those of us fortunate enough to proceed at full speed or close to it during the pandemic have relied enormously on Zoom (or other video platforms — and sometimes I wish we could agree on just one). For those of us who handle complex litigation, that has included taking and defending depositions remotely. This is something I had done only once before, years ago, in the basement of a strip mall off the New Jersey Turnpike, where the deponent was sitting in Palm Beach but appeared to us on an old CRT television the size of a refrigerator. It was not a lot of fun.
How is it going now with remote depositions? It’s going fine. Basically.
By fine I mean that as someone defending a deposition remotely, I had no serious concerns. However, in a recent case, my colleagues and I had a longstanding relationship with the client. We knew him and his company, and we had even done catch up and related calls by video since mid-March so it was not a big deal to continue the work remotely, including defending the client at a deposition. But I would not feel such comfort in all cases: if I did not know the client or witness as well, or if the client or witness was simply new to our relationship, I would want to try to defend the deposition in person. By that I mean it would be fine by me, even under those new-to-one-another circumstances, if the lawyer taking the deposition was not present, if at least I was present with the witness I was defending.
In many ways it’s the same, but less so, with taking depositions: I would prefer to be present, but it depends somewhat on how well I know the adversarial counsel or the adversary. Put simply, if it was the second time I was examining someone, I don’t think I’d mind all that much if we conducted the deposition over Zoom. And that’s because, hopefully, the first time I would have gotten a sense of what the witness was like, what her relationship was with her lawyer, and so forth. Those are key: it’s good to see all those little signals, the throw-away comments during breaks (that aren’t throw away, even if they are made only for the audience in the conference room), and so forth.
Thus, for us, while we are more open to remote proceedings in the future, and all of our thoughts on this will evolve as we keep plugging along during the pandemic, it comes down substantially to how much we know the players before the next Zoom proceeding: if we know the adversary or we know the witness, we’re more open to Zoom; if we don’t, we’re not.
However, as noted, we’re hardly done with “the new normal.” Five months ago, this thing wasn’t affecting our work, positively or negatively, at all. Now it is does every day. To win for our clients, we need to keep learning. But while we are, we need to know how to decide on when to push for in-person proceedings and when not to.
John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected]