Courts are now reopening across the country and the social distancing requirements that upended traditional civil litigation practices for the past year are gradually being eliminated. The “old normal” appears to be just around the corner. No more need to polish those hard-earned virtual advocacy skills, right?
Yes and no. Although it’s true that in-person trials are being scheduled in many jurisdictions and local governments are relaxing social distancing rules in a way that permits face-to-face depositions, there’s little likelihood that the legal profession will be able to “unring the bell” of its experience with virtual depositions and trials during the COVID-19 pandemic.
Many litigators are now skilled at — or at least conversant with — obtaining testimony via remote technology. The benefits and drawbacks of remote technology, once a purely conjectural topic, have been rendered tangible and well-known through litigators’ experiences during hundreds of thousands of remote proceedings. Litigators are now able to make informed decisions about which depositions can be handled remotely and which ones cannot. Judges know with certainty that remote technology can move cases along expeditiously, and fairly, through the pretrial process. And, importantly, clients have seen the cost savings that can accrue when travel is eliminated from the deposition and pretrial motion practice equation.
Lawyers Must Be “Better Than Ordinary”
Jeffrey Rosenfeld, a partner at Alston & Bird in Los Angeles who’s conducted nearly 30 remote depositions during the past year, says remote proceedings require litigators to be at the top of their game. “Understanding the technology, conquering the technology as best you can, and adapting your methodology to fit the technology is incredibly important,” he said. “As far as the questions you ask and how you use your documents, it all becomes of the utmost importance to be better than ordinary if you want to be effective when you’re dealing with the added layer of technology and the challenge of not being present with one another.”
Speaking during the American Bar Association Litigation Section’s recent virtual meeting, Rosenfeld said that successfully conducting, or defending, a virtual deposition requires heightened attention to:
In view of the unique environment presented by remote deposition technology, preparation for a remote deposition requires several additional steps that litigators must take to ensure that their clients’ interests are adequately protected. According to Rosenfeld, Litigators should:
- Become fluent in the use of the technology that will be used during the virtual deposition, particularly the process for sharing exhibits (consider mock virtual depositions).
- Ask the deponent to identify all individuals present in the room where the deponent is testifying and to explain where the defending attorney is located.
- Obtain stipulations from opposing counsel on key procedural matters: authentication, preservation of objections, and other issues raised by the virtual format.
- Adjust questioning style to account for differences in a virtual environment. Take care to speak slowly and clearly.
- When handling documents, identify them both descriptively and by Bates number.
On the topic of document-sharing during the deposition, Rosenfeld observed that each vendor’s platform is different in operation. He advised taking the time to learn these differences, to request test runs with each vendor’s platform, and to really get to know each platform well.
Litigators who have trouble managing documents during a virtual deposition could bump up against time limits imposed by court rule, Rosenfeld said. Working on authentication issues with opposing counsel in advance of the deposition is another way a litigator can save scarce deposition time, he added. “I like to try and get authenticity stipulations from counsel so I don’t have to go through the length of laying the foundation and proving authenticity for documents,” Rosenfeld said. “Most lawyers are willing to do that because they’re facing the same problem in document-intensive cases.”
Expert Witnesses Should Also Come Prepared
Preparation is critical for expert witnesses too. Joao C. dos Santos, senior managing director at Ankura Consulting Group LLC in Los Angeles and frequent expert witness on economic and data analysis issues, said that, while preparation continues to be the most critical attribute for successful testimony, virtual proceedings raise a few additional areas of focus.
Expert witnesses should take time to ensure they have an acceptable background, proper lighting, and good audio quality, dos Santos said. When dos Santos is testifying remotely, he brings along a portable Wi-Fi hotspot as a backup just in case his main internet access technology fails for some reason.
It is also important to be familiar with — and adept at — the virtual tools used for delivering testimony and handling documents and exhibits remotely, dos Santos noted. “Being able to understand how to navigate and deal with the Zoom, Microsoft Teams, Skype or whatever technology is there, and being able to use the file-sharing applications is essential in my line of work nowadays,” he said.
Expert witnesses should also be sure to adjust the flow of communication — to be cognizant of the need to speak in a manner that can be heard and understood by all remote participants. “Speak slowly and clearly — make sure that you’re being heard and understand that there are longer pauses in a communication,” dos Santos said. “It’s not the same thing as being across the table from somebody else.”
He added that he enlists IT support when testifying and that he always keeps a paper copy of important exhibits and documents in case a technology failure prevents access to electronically formatted versions. “Hiccups happen,” dos Santos said. “It’s important to remain calm and carry on. That’s the bottom line.”
Technology Struggles Happen, But They’re No Excuse
A recent disciplinary action in Michigan illustrates two points made by Rosenfeld: first, the need for attorneys to become technologically adept; and second, the need to be aware that the camera is capturing everybody’s image — not just the person speaking. According to the Detroit Free Press, the Michigan Court of Appeals fined an attorney $3,000 for making a profane, single-finger gesture during an online oral argument. The attorney, who was not arguing the appeal but was instead merely observing the arguments, claimed that he was frustrated because his computer screen was not working correctly and he believed the judges could not see him.
The appellate court either didn’t buy that explanation, or it didn’t believe alleged technology challenges excused a profane gesture visible for all to see. It referred the matter to the Michigan Attorney Grievance Commission for further investigation.
The lesson for litigators seems clear: when the camera comes on, be prepared to shine. Both courts and clients are expecting your best.