Three Steps to Effective Phone & Video-conference Depositions -- Step 1
Step 1: In consultation with your client, asses the witness and their potential testimony to determine whether remote examination is appropriate. The suitability of a deponent for remote examination depends on the importance of the witness to the ultimate outcome of the case, and the potential length and complexity of their testimony.
In every case, the witnesses vary in importance to the outcome of the litigation. Often, several witnesses who must be deposed whom the attorney knows in advance are unlikely to have much useful information. These witnesses are prime candidates for remote examination. A very minor player, such as a firefighter who merely directed traffic at an accident scene, is typically an ideal candidate for remote examination. Those decisions are easy. As we move along the spectrum to more important witnesses, such as family members, scene witnesses, and even some treating physicians, more judgment is required. But those witnesses are still very strong candidates for remote examination. The decisions start to get harder and require very careful consideration and judgment as we move to critical eyewitnesses, major treating physicians and experts. It may be that the need to lay eyes on these witnesses far outweighs the benefits of cost savings.
The second factor in determining the suitability of a deponent for remote examination is the potential length and complexity of the examination. If it is anticipated that the examination will take much of a day, dozens of hundreds of exhibits, and review of numerous photographs or video, the deponent is probably not a good candidate for remote examination. Oftentimes, the importance of the witness and the complexity of the examination are aligned, making the decision fairly straightforward. Other times, it’s a tough call. In any event, careful judgment and consideration of the risks is always required.
During this period of assessment and consideration, and before the final decision is made, consultation with the client is required. Part of giving value to clients is to keep them involved in decision making on cost cutting measures. As I have discussed in many previous postings, imposing cost saving measures often requires some risk taking by both client and lawyer, and a high degree of mutual trust. Involving the client in the decision about which witnesses to depose by telephone or video conference enhances the level of mutual trust, and allows both parties to feel that they have shouldered the risk equally.
My next posting on this topic will discuss Step 2: Carefully prepare for the deposition -- logistically and analytically -- to minimize the downsides inherent in remote examination.
