Legal Law

Reflecting On My First In-Individual Deposition Since The Shutdown

As many people within the legal profession understand from first-hand experience, lawyers and courts have been conducting operations remotely since the COVID-19 pandemic began. Judges and court attorneys are usually holding hearings and conferences through Zoom or other similar mediums these days in order to reduce the risk that attorneys and court staff will be exposed to the virus. In addition, many depositions have been held remotely so that parties do not need to be together in one room during the proceedings. However, I recently had my first in-person deposition since the pandemic began, and the experience has shown me that there is much that is lost by holding depositions through remote means.

Rapport Between Attorneys

Of course, the most important part of a deposition is to receive sworn testimony from a witness. However, there are a number of other reasons why in-person depositions can be important to a case. Perhaps one of the most important aspects of in-person depositions is that is gets all of the attorneys connected to a case in one room, which can be helpful in moving a case forward. At an in-person deposition, attorneys can casually talk about discovery disputes, settlement numbers, and numerous other issues while everyone is together for the purpose of taking a deposition. Moreover, attorneys can build rapport with one another at in-person depositions in ways not possible during virtual depositions. For instance, many attorneys eat lunch together during breaks in a deposition, and this can go a long way toward building connections with other attorneys on your case and even in your practice area. I have never heard of attorneys eating their lunches together through Zoom during virtual depositions, and this rapport-building is essentially lost during virtual depositions.

Efficiency

One of the biggest benefits that I missed about in-person depositions is that taking testimony live is far more efficient than using Zoom or other remote means. When parties use Zoom or other applications, there is always the risk that internet disruptions and other technical glitches will make it difficult to take testimony. At virtual depositions, it is also sometimes hard to hear people, and individuals are far more likely to talk over each other, which can be difficult on the deponent, the attorneys, and perhaps more importantly, the court reporter.

Moreover, many of the procedural parts of a deposition are nearly impossible when depositions are conducted through virtual means. For instance, it is much more difficult (or impossible) to show a witness an exhibit during a virtual deposition, have them read from a writing, and ask questions pertaining to documents and other tangible items. Any good deposition taker will tell you that using exhibits is an important part of directing a witness, and this component of depositions is really hard with virtual proceedings. Moreover, using translators is much easier in person than during virtual depositions. Translators can already add to the time and complexity of a deposition, and this is even more of a challenge at virtual depositions. All told, my recent experiences with in-person depositions and virtual proceedings have shown me that in-person questioning can save both time and effort.

Witness Reactions And Sidebars

Anyone who has participated in a deposition conducted over the phone or even by Zoom (or a similar app) knows that it is hard to discern witness reactions during virtual depositions. Being able to observe the reactions of a witness is extremely important to determining if a witness is telling the truth, is uncomfortable about certain topics, and other insights. The reactions can help inform an attorney’s perspective, and it is extremely difficult to get this understanding from virtual depositions.

In addition, virtual depositions make it much easier for attorneys to coach their client during a deposition. Some jurisdictions restrict the applicability of the attorney-client privilege during depositions because courts understand that it is important for witnesses to provide truthful and unguided testimony during depositions. However, it is much easier for attorneys to talk with clients without other counsel knowing about it when they are in a room together and everyone else is participating in a proceeding remotely. While I do not want to impugn anyone, everyone knows that coaching and other “funny business” often occurs at depositions, and this is much easier during virtual depositions.

Of course, I am not saying that virtual depositions shouldn’t take place during the pandemic, and lawyers — just like everyone else — need to follow the advice of medical professionals. It seems like virtual depositions will be a much bigger part of the legal profession for a long time, since health guidelines require social distancing and depositions usually bring people together. However, my recent experiences with both in-person and virtual depositions have shown me that virtual depositions should not be an ubiquitous and permanent fixture of the legal profession.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].

Related Articles