Co-Written with Suzanne Martin, Esq., Director of National Accounts for Centext Legal Services.
The COVID-19 pandemic has fundamentally changed the way in which depositions are conducted. Most depositions throughout California are now conducted remotely, on virtual conferencing platforms, rather than in person, which was the modus operandi for so long. This change has brought some major benefits for counsel, witnesses, and the court reporters/videographers who are critical to the proceeding: there is much greater flexibility for all involved, as they are no longer required to travel to and from their offices or homes for each deposition, they do not need to carry their files or equipment to and from the deposition location, and they can now “attend” from anywhere, at any time, with a reliable internet connection. Running late, stuck in traffic, and transit delays are all avoided. Here in the Bay Area, that has been an enormous benefit simply in the efficient management of time, avoiding the ever-frustrating Bay Area freeways or less-than-reliable public transportation networks. Virtual depositions, when counsel and witnesses are prepared and their connections are vetted, promote greater efficiency and result in less time overall to complete the examination. Depositions tend to start on time, breaks tend to be shorter, distractions are minimized, and the preparation and management of the exhibits is streamlined.
Despite these positive aspects to remote depositions, it appears many lawyers have settled into routines that perhaps unknowingly, but certainly unnecessarily complicate the virtual proceeding. These routines have the potential to seriously affect the ability of the court reporter to perform the duties required per the Code and produce a verbatim record in an acceptable time period. As attorneys were learning, adapting to, and then accepted the reality of remote depositions, court reporters and videographers were also mastering the platforms, managing the technical aspects, and formulating best practices to ensure the integrity of the record. It has been well over a year since remote depositions became the dominant manner in which depositions are conducted in California. This is a perfect time to examine some of the learned behaviors that have permeated into the virtual deposition world and explore how to improve virtual deposition proceedings.
Going On and Off Video
Prior to COVID, many court reporters would report when a lawyer left the deposition room. With remote depositions, it is difficult for many court reporters when they go “off video” and just the printed name shows in their identification box. It is even more difficult when numerous attorneys go back and forth on and off video, as it becomes distracting. The reporter cannot accurately report attorneys as “present” in these circumstances. Attorneys should either agree to be visibly present during the deposition or that the court reporter does not have to report when an attorney goes off camera. Also, it is a challenge for the court reporter to determine who is speaking/objecting if video is not being used.
HINT: Introduce yourself before you state your objection until voice recognition is acknowledged. Make sure you watch the court reporter for a visual cue that has you as the speaker as the Zoom video may need to catch up as to who is speaking.
The Appearance Page
For the Appearance Page, the court reporter needs to know each appearing attorney’s name, law firm name, address, phone numbers, email addresses and who they are representing. Usually, the deposing party sends a Proof of Service, but sometimes it is out of date, inaccurate, or it doesn’t include all the necessary information. When you send a list of the attorneys in the case, make sure you provide all the necessary information—especially the attorney’s email address and whom they are representing. That will prevent having to spend time at the deposition to confirm the information.
HINT: Adding the legal assistants and paralegals to the distribution list is a valuable best practice to ensure that more than one individual in the firm is aware of the link to the deposition transcript once the deposition is completed.
Who Are You and Who do You Represent?
All remote platforms provide a tool to “name” yourself. Even now, after so many months of remote depositions, attorneys are appearing at depositions on connections which display the wrong name. There are countless stories in which participants in virtual conferences are not the person identified by the name displayed. Are you using your spouse or child’s computer, or another attorney in your firm’s? The court reporter must often rely on the name displayed, especially if you join the deposition late. When you are on Zoom, you can change your name by doing the following:
- Select Participants, located in the bottom toolbar of the meeting window.
- Hover over your name and select More (desktop) or tap your name (mobile).
- Click or tap Rename
- Enter your desired name and click Rename (desktop) or Done (mobile).
HINT: When you rename yourself, include the name the party you are representing. This is helpful when multiple parties are attending the deposition.
Some attorneys wrongly believe that when they submit documents prior to a deposition to the court reporter or reporting agency, that those documents will be marked as exhibits and made a part of the record. The requirements of introducing documents as exhibits for remote depositions are no different than in person depositions–Documents must be clearly marked on the record and introduced as exhibits in order to become part of the official record. You also need to provide the documents to all participants even though they are remote. There are many avenues available in the remote world to duplicate the traditional “handing it across the table to counsel” in a typical conference room setting. You have the ability on Zoom to share the documents by using Share Screen. You can also upload the documents using the Chat function on Zoom.
Many court reporter firms have remote technicians available to attend, manage, show and share the exhibits for you if you are not comfortable with the technology. Also check with your court reporter firm if they have developed exhibit introduction applications on their sites which are available for you to pre-load your documents for you to use during the deposition.
HINT: It is incorrect to assume a court reporter will manage the introduction of exhibits for you, or screenshare a document during a deposition.
Come to the Deposition Early
Most court reporters will be on the link at least 15 minutes before the time noticed, and in many circumstances, a half hour before. By joining early, you can introduce yourself, ensure the reporter has all your contact information, and discuss exhibit issues and any difficulties you may having with the technology.
Systems crash, platforms get overloaded, kids interrupt, and cats still want to participate. Levity is important as we are all in this together.