The number of remote legal proceedings hit a peak a few years back, but the end of the COVID-19 public health emergency doesn’t mean a reversal to pre-pandemic logistics. While they can have some drawbacks, virtual depositions, hearings, and trials offer cost and time savings, and people today are increasingly familiar with video streaming platforms and protocols.
So what does that mean for your remote witness or client? Simply sending your client or witness a remote meeting link and having them hop on their laptop or smartphone won’t cut it —there are unique challenges to positioning your witness to effectively tell their story and make themself understood in a virtual environment.
What Is a Remote Testimony?
Remote witness testimony simply refers to a witness participating in a live legal proceeding held virtually rather than in-person.
While the pandemic forced change faster than the legal industry was accustomed to, remote testimony wasn’t invented in 2020. Under Federal Rule of Civil Procedure 30(b)(4): “parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” (1)
As for trial testimony, the Federal Rule of Civil Procedure 43(a) guides the court to “permit testimony in open court by contemporaneous transmission from a different location” when there is “good cause in compelling circumstances and with appropriate safeguards.”
Is Remote Testimony Always Recorded?
Remote testimony refers specifically to live streaming—not to a video or audio-recorded testimony.
Just as in an on-site proceeding, a court reporter is required to capture a verbatim record and produce an accurate transcript. Oftentimes, a legal videographer is also present along with the court reporter to create a video record of the proceeding.
For a video deposition, the use of streaming technology does not provide blanket intent or notification to make an audio or video record supplemental to the transcript. Even if a deposition is taken remotely, the virtual deposition notice must still indicate: (2)
- By what means the deposing attorney intends to record it, and
- If they reserve the right to present the recording at trial.
Can You Testify over Zoom?
In short, yes. Zoom is among the most popular video conference platforms and can be used for legal proceedings. Other remote conference platforms include:
- Microsoft Teams
- Google Meet
While these generic remote conference platforms technically would work for remote legal proceedings, it’s recommended to use a platform built specifically for the legal industry. These proprietary platforms offer features, functionality, and security specifically for legal professionals, including exhibit introduction and annotation tools and private sidebar rooms.
How Do Remote Testimonies Work?
The trial, deposition, or other event may be remote, with each participant logging into a meeting platform from a unique location, or hybrid.
In a hybrid event, some or most of the attendees gather in a courtroom, conference room, or other location and view remote attendees on a screen while they interact through the virtual platform.
There may be an administrator or host who handles the platform features such as:
- Admitting individuals into the meeting
- Setting up and assigning individuals to breakout rooms for privacy
- Moderating the chat interface and responding to questions
- Providing basic troubleshooting for technology issues
Prepare Your Witness for a Remote Testimony
Regardless of the meeting format, there are useful tips to share with your witnesses, such as providing concise and true responses, not volunteering information or speculating, and understanding which type of questions they aren’t required to answer.
When the proceeding is remote, there are specific challenges to address. Alert your witness to:
- Common platform and connectivity issues
- Self-presentation tips and challenges specific to remote participation
- Common remote-participation objections by deposing attorneys
Preparation is key for effective remote testimony.
Connect With Your Witness
Ensure your client or witness has received their notice of the proceeding and will be able to attend as scheduled. Take the same steps you’d usually use to prepare them prior to the event:
- Review their statement and what questions to anticipate
- Ensure they understand deposition testimony use at trials, including impeachment
Technology Prep and Testing
For in-person depositions, participants are often asked to arrive at least 15 minutes early to grab a beverage, see where the bathrooms are, and get settled.
With a remote deposition or trial, arriving timely consists of two stages:
- Testing and set up a week or more in advance of the scheduled event, and
- Early connection to the scheduled event
A worst-case scenario is a witness trying to click the event link when scheduled to join, only to be met with software, audio, or video roadblocks. Ask them to test the platform and their hardware as soon as the proceeding is scheduled.
Your witness may need:
- A change in location and/or device to improve connectivity
- Software or app downloads and installation
- A headset for improved audio transmission
- Updates or patches to previously installed software
- A standalone webcam if a built-in one is insufficient
On the day of the proceeding, request that they settle in about an hour ahead of time to ensure there are no last-minute updates or glitches to address, and then log into the event 15 minutes early.
Compile the Evidence
If you, as the attorney, are presenting documents or physical evidence, make sure those will translate to the remote environment. Be sure to prepare the following:
- Timeline to prepare, review, and test evidence with them prior to the proceeding
- Preferred file formats for text including layout, font, or other tips
- Formatting requirements for images or video exhibits
- The process for screen sharing and who will manage it
- File sharing or submission prior to, during, or after the proceeding
Provide a Platform Cheat Sheet
Whether you use a proprietary system or another meeting platform, pull together a simple resource to share with your clients (and make sure you know all the tips yourself).
This may include how to:
- Turn video and audio on and off
- Control what you view (speaker, group, shared file, chat field, etc.)
- Display meeting controls on screen
- Change the display name if needed to show their full legal name
- Suppress pop-up computer notifications (calendar, email, etc.) during the meeting
- Share a screen or document
- Use a telephone option for audio connection
Make Sure They Wear Pants
It became a bit of a joke at the height of the pandemic that remote meeting participants just needed a formal shirt worn above pajama pants and bunny slippers, but your witnesses need to take self-presentation seriously at a trial or deposition. Rising suddenly to adjust the lighting or to get a glass of water shouldn’t set off a round of giggles.
Similar to a live proceeding, witnesses should:
- Wear a professional or business casual outfit in neutral cut and colors
- Avoid loud patterns, outlandish colors, and anything with logos or statements on it
- Eschew hats and eye-catching jewelry, hair, and cosmetics
While not everyone will be connecting from a conference or courtroom, your witness shouldn’t be attending from a coffee shop or a hoarder’s paradise. Aim for:
- A neutral, clean, minimal backdrop
- A private, secured location with a closed door
- No interruptions from pets or family members
- Silenced phone or other device notifications, rings, and alarms
Additionally, ask them to ensure lighting and device setup that offers a well-lit view even with their face or torso—avoid upward-facing camera angles, backlighting, and ring light reflections.
Clear Communication Across the Cloud
As with an in-person proceeding, a court reporter will be tasked with capturing a verbatim deposition transcript. This means:
- Responses must be verbal, vs. nods, shrugs, or other visual indications
- Speech will need to be clear and at a controlled speed, with pauses where appropriate
- Only one participant should be speaking at a time
This doesn’t mean asking your witness to speak robotically or avoid all emotion. Displaying pain, frustration, or regret where it exists—in ways that are appropriate to the environment—is appropriate and even useful. Just make sure they understand the need for clear, singular, well-paced speech in general, and that they may be asked to repeat anything that is unclear.
- Administrative Office of the U.S. Courts. Federal Rules of Civil Procedure. https://www.uscourts.gov/sites/default/files/federal_rules_of_civil_procedure_december_1_2022_0.pdf
- Sacramento County Public Law Library. Discovery Depositions. https://saclaw.org/wp-content/uploads/sbs-discovery-depositions.pdf