Law360 (September 16, 2020, 3:02 PM EDT) --
Under the rules of most jurisdictions, the defending lawyer can do little more than object to form and privilege on the record and, in many jurisdictions, lawyers are prohibited from discussing the substance of the deposition with the witness during breaks.
In a remote setting, the witness is even more isolated from the lawyer. That makes careful planning and witness preparation critical to defending the deposition and avoiding damaging admissions.
This article discusses how to prepare witnesses for, and effectively defend them in, remote depositions. The advice below is based on our experience preparing and defending witnesses in dozens of recent remote depositions.
The most important, but perhaps least appreciated, part of deposition preparation is building the witness's confidence so that he can push back on argumentative leading questions, ask for clarification of confusing questions, and resist opposing counsel's attempts to change his answers through aggressive, repetitive follow-up questions.
To a certain extent, a remote deposition is less intimidating than an in-person deposition because the witness will be in a familiar setting and opposing counsel will be a face on a computer screen. Still, except for professional experts and senior executives accustomed to adversarial situations, most witnesses are nervous about giving a deposition in any setting.
Confidence building is accomplished by (1) explaining and demystifying the deposition process; and (2) explaining the witness's role in the case and giving him a thorough understanding of the material likely to be covered, including through practice cross-examination. By doing steps (1) and (2) in a careful, unhurried process, the lawyer will also demonstrate her own confidence and allow the witness to share in it.
Preparation sessions for remote depositions should therefore be at least as long, and cover at least as much material, as preparation sessions for in-person depositions. For witnesses who are current or former employees of the client, having in-house counsel present for at least part of the process further builds confidence by removing doubts about whether the game plan proposed by outside counsel is consistent with the client's interests and sensitivities.
Scheduling and Logistics
As a general guideline, preparation should take at least as long as the deposition is expected to take. For a full-day deposition requiring a full-day preparation session, consider splitting the preparation into two or three shorter sessions over a period of a week or more. This avoids the "Zoom fatigue" that sets in after several hours of remote meetings and gives the witness a chance to reflect on lessons learned and ask questions of the lawyer in subsequent meetings.
The possibility of splitting a full day's preparation into multiple shorter sessions where counsel and the witness can both be more effective is an advantage of the remote setting over the in-person setting. But make sure to do several long, uninterrupted stretches of practice cross-examination, especially later in the process, so the witness gets used to focusing for long periods and performing without the lawyer's help.
Try to schedule one of the preparation sessions on the day prior to the deposition, so the practice cross-examinations and corresponding feedback are fresh in the witness's mind. In-house counsel should also offer an opportunity for the witness to speak with her outside of the formal preparation sessions in order to replace informal interactions that would normally occur in the office and to make sure the witness is comfortable with outside counsel's advice.
Conduct preparation sessions via video, ideally using the same platform as will be used for the deposition itself. Where possible, present documents in the same way as they will be presented during the deposition itself, but also provide the witness a full set of documents in electronic format or a hard-copy binder for easy reference.
Insist that the witness turn on his camera so you can see each other. Use the preparation sessions as a chance to familiarize the witness with the technology and identify problems — e.g., a slow internet connection, a microphone causing feedback, settings that prevent the witness from downloading exhibits — that can be fixed in advance, avoiding distraction and delay during the deposition.
If the witness lacks reliable computer equipment, consider providing it either from the client — if the witness is an employee of your client — or a rental service. Some court reporting services that offer a remote platform will ship a complete computer setup to the witness for a modest rental fee.
Ask opposing counsel to agree in advance whether the deposition will be recorded on video. In some jurisdictions, the notice of deposition must specify whether the deposition will be video recorded. If the deposition will be recorded, make sure the witness appears in a pleasant, professional setting and dresses appropriately.
Most lawyers do not go to the trouble of preparing video clips for impeachment during a trial cross-examination, but some do, and in that event the jury will be able to observe the witness's appearance and surroundings during the deposition.
If the deposition will not be recorded, then the setup should be driven by the witness's comfort, minimizing distractions and the reliability of the internet connection. If the witness lives in a remote area with a weak or unreliable internet connection, consider giving him access to a conference room in the client's office or a hotel for the day.
Also ask opposing counsel to confirm how exhibits will be presented to the witness during the deposition. There are several methods, including web-based platforms provided by court reporting services, emailing exhibits in advance, emailing exhibits during the deposition, and shipping hard copies in advance. Any method is workable, provided that both the witness and defending counsel can review the entire document at will and defending counsel retains a copy of the document for her own reference.
The one method that is not acceptable is for opposing counsel to present exhibits through a screen-sharing feature in which the witness and defending counsel are unable to independently review and retain the document. Screen-sharing features should be used only in conjunction with providing the entire exhibit to the witness and counsel through one of the other methods mentioned above.
Opposing counsel should agree to share complete exhibits with the witness and defending counsel because that is how a regular, in-person deposition would be conducted, although they can reasonably refuse to provide the exhibits in advance such that defending counsel and the witness get a preview of the questioning.
If you expect to conduct redirect examination, make sure you know how to present exhibits to the witness and opposing counsel, and discuss the possibility of redirect examination with the witness during preparation.
Substance of Preparation
Every preparation session should begin with a thorough discussion of the rules of the road, beginning with a literal explanation of the setting and the participants. The witness should be told that opposing counsel's objective is primarily to get admissions that can be repeated in front of the jury at trial and, secondarily, to learn facts that the witness knows relevant to the case.
In answering leading questions, the witness should be taught to distinguish between those that contain an argument or a characterization, which the witness must resist agreeing to, and those that simply ask the witness to admit a true fact without any argument or characterization, which the witness can safely do.
The easiest way to avoid signing on to an argument or a mischaracterization embedded in a leading question is to answer, "I disagree," or "I wouldn't characterize it that way." The remote setting makes the aggressive, bullying tactics of "bad cop" lawyers less effective than they would be in person, but witnesses will still make damaging admissions unless they are taught how to recognize and neutralize dangerous questions.
Senior lawyers should bring a mid-level or capable junior-level associate to conduct practice cross-examination. If the client is reluctant to pay for two lawyers, consider writing off the time of the second lawyer.
The senior lawyer and the associate can take turns cross-examining the witness, which gives the witness exposure to different cross-examination styles. It also gives the senior lawyer a chance to observe the witness and give suggestions for improvement without being distracted by the need to simultaneously conduct the questioning.
When the senior lawyer is asking the questions, the junior lawyer can present the exhibits on screen like opposing counsel may do during the deposition. Ask a client in-house lawyer to attend the preparation session, at least for part of the time, to introduce outside counsel, sooth a nervous witness, and give her blessing to judgment calls about how to answer sensitive questions.
The ability to bring more lawyers at no travel cost is another advantage of the remote setting and can provide more varied and thorough preparation.
During the Deposition
Have the witness log on no more than five minutes before the scheduled start time and, if the deposition starts late, tell the witness to take a walk and return in 10 minutes. Remote depositions are often delayed by technical problems and defending counsel should not add to a long day by making the witness log in before the scheduled start time or sit through technical delays experienced by others.
Once the deposition begins, on at least an hourly basis, observe the witness for signs of fatigue. One advantage of the remote setting is that defending counsel can look at the witness without distracting him or making opposing counsel suspicious.
Defending counsel should also observe the court reporter for signs of confusion, whether due to technical problems or parties talking over one another. Remind the witness not to talk over opposing counsel and vice versa — this is not coaching and it is important for making an accurate transcript.
Never communicate privately with the witness on the record, e.g. via email or text, but plan a way to communicate during breaks in the deposition. Many remote platforms include a "breakout room" feature where the parties are separated into private videoconferences during breaks. These generally work well and are worth using, even at an additional cost.
At minimum, exchange phone numbers with the witness in advance and plan to call him during each break. Even in jurisdictions where the defending lawyer is not allowed to discuss the substance of the testimony with the witness during the deposition, generic expressions of approval and encouragement, followed by small talk about sports, pets, trips, kids and the weather, will help maintain confidence and rapport over a long day.
If lawyers for co-parties or staff supporting expert witnesses will attend the deposition, include them in the breakout arrangements as appropriate and make sure they know not to communicate privately with the witness on the record.
Finally, if all parties agree, consider conducting a partly remote deposition in which the witness and the defending lawyer are together in person — with appropriate COVID-19 protocols — while opposing counsel is remote. The court reporter can either be in-person or remote, depending on the preferences and COVID-19 sensitivities of all parties.
We have conducted numerous partly remote depositions over the last six months and found that they resolve most of the witness nervousness and communication problems of fully remote depositions while reducing, though not eliminating, technical problems.
Opposing counsel may perceive a disadvantage in being remote from the witness while defending counsel is present in person, so be prepared to agree to a similar arrangement for conducting your depositions of the opposing party's witnesses.
After the Deposition
Always reserve signature on the record and review the transcript carefully before sending it to the witness for review and signature. Transcripts of remote depositions can be affected by technical problems on all sides that may go unnoticed during the deposition or may be impossible to quickly and fully correct.
Moreover, many court reporters rely on lip reading to supplement their real-time understanding of the dialogue, which can be difficult in a remote setting, e.g., if the witness's camera is positioned at an angle or his mouth is obscured by a headset. Sometimes, these problems can be fixed before the deposition begins, but be cautious about asking your witness to adjust a home office setup he is comfortable with. A careful post-deposition review of the transcript may be better.
Although the remote setting presents unique challenges for defending depositions, it also can provide opportunities to better engage with the witness over multiple, shorter preparation sessions, to include more lawyers in the preparation process at little or no extra cost, and to better monitor the witness and the court reporter during the deposition itself. Through careful preparation, defending counsel can take advantage of the benefits of remote depositions while avoiding the pitfalls.
Jessica Staiger is associate general counsel for litigation at Archer Daniels Midland Co.
Alec Solotorovsky is a partner at Eimer Stahl LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firms, their clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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