COVID-19 has caused a swift and unprecedented change to many social institutions in the United States (and worldwide). As a result, lawyers have been compelled to adopt new practices and policies to face the challenges of this time. No discipline has been changed quite as much, however, as that of the litigator.
COVID-19, for example, has changed the way depositions will look for the immediate future. We suspect that some of those changes will become a permanent part of the fabric of litigation as technology and broadband access continue to accelerate.
Many states have adopted emergency rules that permit for the swearing of witnesses remotely and have altered or removed requirements that a notary witness a signature on certain documents. Instead of cramming multiple attorneys, a court reporter, and a witness in the same room, the relaxed procedures allow remote depositions where the interested parties are in different places.
We spoke with AJ Simeone, COO of Network Deposition Services, about what he is seeing now that social distancing is the "new normal." Simeone's company had a jump start on this trend, as it turns out. According to Simeone, NDS has been using Zoom to conduct depositions since 2014, when his company facilitated a deposition by a Pittsburgh attorney of a Kenyan witness in a construction dispute. In total, his company has facilitated thousands of hours of Zoom-based depositions. As a result, he witnesses first-hand the give-and-take inherent in that process.
More veteran attorneys, for example, seem most reluctant to allow video depositions, as they tend to be most hardened in their ways. Simeone has heard the frequent lament: "I just want to be able to look my witness in the eyes." And while there may not be a perfect solution to that very real psychological issue, Simeone has found multiple ways to solve other, more technical problems.
Our own practice in preparing for and taking depositions involves the painstaking assembly of exhibits into binders so that each party to a deposition has a prepared binder of anticipated exhibits (usually divided by numbered or lettered tabs) handed to him or her at the beginning of the deposition. That is the foreseeable "universe" of exploration during a deposition. The order might change, and some exhibits may not be examined closely (if at all), but most everything is there, ready for an easy turn of the page.
But we always face the problem: what happens if a witness goes "off script" or starts testifying in ways inconsistent with facts we already know? Sometimes, a contemporaneous impeachment must occur to maximize the effect, especially if the goal is to push on a settlement-inducing pressure point. When asking Simeone how the available technology might allow for us to put a document in front of a witness that we did not submit in advance, he had several solutions ready:
- Pausing the deposition and e-mailing all participants the documents;
- Having a "technician" available through the deposition who shares his screen, which is either blank or focusing on the desired exhibit(s) or page(s); and
- Allowing the questioning attorney to share his own screen and control the attention of the parties.
In short, the growing technology allows us to troubleshoot problems fairly easily.
Even issues with internet connectivity can be resolved if they are addressed in advance. In some instances, NDS technicians troubleshoot connectivity issues via routers in advance. In other instances where technology available to the deponent is an issue, NDS can even deliver tablets with specific instructions on how to log in and how to operate the functions required of a witness during a remote deposition. And for parties (likely not witnesses) with lingering connectivity issues, they can also participate via land-line or mobile.
NDS, and others like them, offer services to make this "new era" as easy as possible to navigate. And as more states extend their social distancing and partial shutdowns into the summer months, we can easily imagine a world where more and more depositions, hearings, and conferences require web-based solutions. As litigators, then, we must consider and adapt to the issues that this reality presents. Even though we might not be able to look a witness right in the eyes or put a witness in the part of the room with the most direct sunlight, we can navigate virtually every other issue with precision. Exhibits can be circulated beforehand. Unanticipated exhibits can be shared in real time. Depositions can be recorded (including the demeanor of the witness) at a cost cheaper than traditional video depositions.
We also can craft appropriate stipulations beforehand to resolve issues concerning the manner of making and the preservation of objections to substance or form. Such stipulations should account for the platform. As a result, we should also advise witnesses, if advantageous to our goals, to take an extra pause between question and answer, especially to avoid situations where an attorney might advise his witness not to answer a question. That advice is useless if the witness has blurted out an answer before waiting on such an instruction. Stipulations concerning the manner of swearing in a witness and allowing a witness to review and authenticate the record should also be considered.
Once we resolve those issues, creative litigators will still find ways to mimic the psychological impact of staring down his adversary while trying to strike pay-dirt. As for the sunlight and heat issues, absent hacking into someone's Nest system (we do not advise that), we will just have to accept that doing this never really works anyway.