Three Steps to Effective Phone & Video-conference Depositions -- Step 2
Step 2: Carefully prepare for the deposition -- logistically and analytically -- to minimize the downsides inherent in remote examination. The second step in conducting an effective remote examination of a deponent is the logistical and analytical preparation. That is, the attorney must ensure that all of the practical components are in place to ensure the deposition goes ahead as planned, while also preparing for the deposition differently than she would for an in-person examination.
Initially, the examining attorney must decide if a telephone deposition is adequate, or if video will be required. Obviously, video-conference is preferred, but not always available. Although video-conferencing technology has come a long way, it still generally requires that the deponent go to a court reporter's office or other facility with video-conferencing capability. Video-conferencing also increases the likelihood of something going wrong, since more technology is involved. If the witness is important, though, video-conferencing is worth the trouble.
Another practical consideration before commencing the examination is how to manage exhibits. In a big case, it is a rare deposition that does not involve the review of any documents. Accordingly, the witness must have hard copies of the the exhibits. A critical preparation step is to ensure that any exhibits that will be used at the deposition are sent to the court reporter ahead of time. The exhibits are then on the table in front of the witness when the examination commences.
If the examiner does not want to show her hand, an alternative is to use an on-line remote presentation site such as WebEx or Live Meeting. The exhibits can then be displayed on a screen for the witness to review while being examined. This method only works when there are few exhibits, and the documents are not voluminous. When confronted with a large document, a witness may request the opportunity to examine the entire document before further questioning. If the document is not available in hard copy for the witness, opposing counsel might cry foul. Another downside of electronically presenting exhibits is that the witness cannot be directed to annotate documents. This is particularly problematic with photographic exhibits. Often, a witness is asked to circle and initial specific points in a photograph. Although some software allows for annotation and printing, the process can be cumbersome. One solution is to send the court reporter actual copies of important exhibits that the examiner knows, in advance, she will want the witness to annotate.
After preparing for the logistics of the deposition, the examiner needs to consider any modifications to the actual examination to account for not being in the room with the witness. A particularly evasive or difficult witness is even more difficult to control over the phone. So, the examination may need to be tighter and more forceful than usual. The parties also tire more quickly over the telephone, so the examination should be structured to get into the important issues early. Finally, not being present in the room allows the witness to communicate more with his attorney. The attorney and witness may use body language to give each other cues that they would never use if the examiner was present in the room.
Remote examination should not be undertaken lightly. Not all witnesses are candidates, and more preparation is required than for a typical deposition. I have found that negotiating agreements with opposing counsel early on in the case can resolve many of the downsides inherent in remote examination. With these advance agreements and thorough preparation, phone and video-conference depositions can be very effective litigation cost control tools.
