Do’s and Don’ts of Virtual Depositions
First Environment’s expert witness service spans 33 years and includes over 30 trial cases involving environmental issues such as Superfund sites, cost allocations, natural resource damages, toxic torts, energy disputes, and environmental insurance claims, among others. In recent months, trial testimony and depositions have migrated to virtual platforms, presenting unique challenges to both those doing the questioning and to those being deposed.
“When I first started out, everything was done face-to-face using paper exhibits” says Dr. Tod Delaney, First Environment’s president and one of our key experts. “Now, we’re relying on digital tools to collaborate and communicate, and are facing new kinds of challenges.”
The unprecedented changes in the way that depositions are being performed have created the necessity for all experts, and all witnesses in general, to be proficient in the technological and social aspects of the virtual environment. Our technical experts and litigation support group have quickly adapted to this new format, and we’ve compiled best practices to guide our experts during their depositions and help our clients in the process. *
1. Don’t use browser-based or smartphone applications – they just don’t work as well as the computer version installed on a laptop.
2. Don’t use Bluetooth devices near your computer during the video deposition, as they can cause audio interference.
3. Don’t allow unauthorized participants to listen in. Invitations should be sent to specific participants who are approved by both sides. Federal Rule of Evidence 615 states that witnesses or persons must be excluded from viewing a deposition at a party’s request, though there are exceptions. These types of adversarial events can be easily avoided by having both parties agree on a list of authorized viewers before a virtual deposition begins. This is to ensure the integrity of the responses from the witness, and the good faith of the attorneys hosting the deposition.
4. Don’t use the “Chat” function, email, text, or any other electronic form to communicate with the witness providing deposition. Texts, emails, and the personal chat option are not part of the court’s official record, and this could cause major problems for the deposed witness. Anything that’s said with candor in the chat can ultimately be used against the witness or their client. This could also be considered acting in bad faith.
1. Do encourage everyone participating to update to the latest version of the video conference application (e.g., Zoom, GoToMeeting, WebEx etc.) and supporting software (e.g., Adobe Flash)
2. Do make sure there is an experienced videographer to host the deposition, including setting up breakout rooms for both sides, voicing time stamps for the recording, etc.
3. Do take a roll call of every participant, even those who are just listening in. Include both a voice and video introduction to make sure there are no unauthorized participants lurking in the background. It’s critical to know everyone who is listening to the deposition, otherwise there could be negative ramifications, such as other witnesses (or adversaries) using quotes from the deposed witness to form their own opinions, thereby jeopardizing the witness’s credibility.
4. Do use the “Chat” function to share referenced exhibits throughout the deposition. Any sharing of documents must be acknowledged by both sides. The testifying witness should have (and be familiar with using) two screens: one to watch the interviewing attorney, and the other to view electronically shared exhibits. When performing a deposition, it’s critical that both the adversarial attorney and the witness are on the same page, especially when it comes to exhibits. There have been examples of witnesses who have had their testimony impeached for misreading or misrepresenting the content of an exhibit. Using the chat function is a good way to remedy this.
5. Do ensure that only the examining attorney and the witness are sharing audio and video, and everyone else is on mute with their camera off. Having unwanted noise or video screens is distracting to the key participants. The opposing attorney can unmute for objections or clarifications and then quickly mute. In addition, cutting down on unnecessary video saves bandwidth for a more reliable internet connection.
6. Do make use of breakout rooms for sidebar discussions during breaks. Make sure access is tightly controlled by a neutral party (e.g., videographer).
7. Do ensure the interviewing attorney and testifying witness are each in a quiet room by themselves without distractions, including unusual or provocative artwork, fans, pets, etc. Using a computer-generated virtual background can be helpful.
8. Do beware of time limitations (some platforms enforce limits on free accounts) or overlapping schedules on a single account. In many applications you can’t schedule two meetings for the same time on the same account; one meeting takes precedence over the other and attendees may get kicked out or, worse yet, “uninvited” participants will start showing up.
9. Do leave time for an attorney to voice an objection after a question has been asked, and before answering. Depositions on virtual platforms have proven that the lag, or fragmented response time due to wireless connections, has interfered negatively with this process. Although they are not overruled or sustained by the observing judicial representative, these objections are always recorded, making them part of the official court transcript. If the attorneys don’t object, the court will assume that the attorneys agree with whatever the witness states when the judge (or jury) reads the official deposition transcript
10. Do share these Do’s and Don’ts with all participants before start of the deposition.
*The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
Tom Vorhies, JD
Mr. Vorhies provides litigation support on complex environmental and regulatory cases, including those involving investigation and cleanup liability at federal Superfund and state-lead cleanup sites. He also supports project teams on litigations involving petroleum contamination sites internationally. Mr. Vorhies is skilled at conducting technical and historical research for each case and distills all findings to their essential components to ensure project teams have succinct and relevant information. He has experience working in-house at law firms providing support for court proceedings and using tools such as Westlaw, Bloomberg, and LexisNexus. He has also applied his background in government to help draft environmental policy and support public outreach and education efforts. In addition, he is fluent in Spanish.