Three Steps to Effective Phone & Video-conference Depositions -- Step 3
The third component of a successful remote examination is conducting the deposition itself. The examiner has two options -- telephone or video-conference. The method chosen depends on a variety of factors that ought to be weighed jointly by client and counsel.
Telephone depositions are cheap, and they the least technologically advanced of the two options. So, they don't cost much and are the least likely to have a technology breakdown. They come with one major drawback, however, and everyone who has participated in a teleconference knows what that drawback is -- nobody can see each other. In a telephone deposition, the examiner is unable to provide and perceive body language. The body language of the examiner if as important as that of the witness. In a telephone deposition, the examiner is unable to use techniques such as leaning forward to indicate interest, or looking at ceiling tiles to indicate boredom. Similarly, the witness's body language provides cues to the examiner about where to go with her questioning. Seasoned examiners can quickly detect whether a witness is nervous about a particular line of questioning just by observing eye movements or nervous habits. The loss of the ability to provide and perceive body language is a major drawback of the telephone deposition, and must be carefully considered when deciding on the format of the remote examination.
One "deal killer" for me regarding telephone depositions is when opposing counsel is present in the room with the witness. The disadvantage of being on a "blind" telephone line while your opponent is in the room with the witness outweighs any cost-saving advantages. This is especially true with expert witnesses. The examiner has no way to know if the attorney and witness are passing notes or otherwise signaling each other regarding answers. The examiner is unaware of chats in the hallways during breaks. The examiner essentially has no control, or very little control, over the conduct of the deposition. And control is everything in an adversarial process.
A video conference examination, on the other hand, can resolve many of the issues presented by a telephone examination. Being able to view the witness allows you, as the trial attorney, to assess how this witness will play before the jury. In addition, you can direct the witness to particular exhibits, and see whether the witness gets flustered or otherwise has difficulty locating data. Combined with internet document display software such as Web ex or Live Meeting, the examiner can present exhibits to the witness “on the fly” and get the benefit of a spontaneous response to the exhibit.
The video conference deposition, however, comes at a price. Although the technology has greatly improved in the last five years, remote examinations by video conference still present a high risk of technology failure. Sometimes, the voice track does not match the video track, or the video is jerky or blurry. Sometimes documents will not display correctly. Video conferencing gets better every year, however, and will continue to provide enormous cost savings in the future.
Remote examination of a deponent is a very powerful cost savings tool. However, as with most other litigation efficiency tools, the practitioner must exercise his judgment and only use remote examination when it will not compromise his ability to prosecute or defend his case. Working in concert with the client, the cost-conscious litigator can determine which witnesses are best suited for remote examination, and which ones warrant the cost of traveling to a deposition. As with all litigation cost control measures, sound judgment and close consultation with your client provides both you and the person paying the bills with the greatest benefits.
