Preparing Clients for Remote Depositions During the COVID-19 Pandemic

The coronavirus has, seemingly in a nanosecond,  at least temporarily altered deposition practice in ways we could have never envisioned.   Suddenly nearly all depositions are being taken remotely, if only to comply with orders or advisories that have been issued by state or local governments.

If there are time exigencies attendant to cases in which you’re involved,  it may be that your client will be deposed “virtually” rather than live.   The prospect of a remote deposition presents both opportunities and challenges;  the watchword for both is preparation, preparation and more preparation.

To this point, our deposition preparation protocol has focused largely on the nuances of in-person testimony.    Our explanation. of the trappings of that process is fairly simple:  you sit here, I sit next to you, the deposing attorney sits across from you,  and the court reporter sits at the end of the table taking down the testimony and marking up the exhibits.    It’s all so neat and simple.

But in this (presumably) altered state,  those protocols are out the window.  We’re now forced to meaningfully change the substance of our preparation routine.    And as with changes in substantive law and procedural rules,   it’s essential that we be able to pivot, as it were,  to the new normal.

Addressing Anxiety Concerns

For many and perhaps most clients,  the prospect of testifying by videoconference will seem far less anxiety-provoking than were they forced to stare across the table at a ferocious inquisitor.    There is something profoundly intimidating about the close physical distance between deposing counsel and deponent, particularly when counsel can seize upon body language, facial expressions and other displays of vulnerability to exact damning concessions and admissions from the witness.    And those who are accustomed to participating in virtual meetings may adapt seamlessly to giving video testimony.

But merely because the client may perceive the “ambience” of a remote deposition more favorably doesn’t mean that you should pump the brakes on your preparation process.  In fact,  you may need to invest greater time in explaining at least the “procedural” nuances of remote testimony.

As we know all too well,  depositions are counterintuitive undertakings.   The deponent embarks—hopefully—on a journey that involves a managed dialogue,  free of interruptions, stream-of-consciousness ramblings,  polemical outbursts, and the like.   Now layer on top of this the quirks inherent in a remote deposition,  and you’ve thrust the client into a decidedly foreign environment.

So preparation should start with this mantra:  nothing should be left to chance.

Should You be in the Room With Your Client When a Remote Deposition is Occurring?

The first question that should be addressed concerning preparation is whether you will be in the room with the client when he/she is testifying.   The client may you want you there, albeit while observing social distancing mandates.    That request should be honored if at all possible.   This may be determinative of whether the deposition goes forward on a remote basis;  after all, opposing counsel may see an unfair advantage in you being present with the client while he/she comes in remotely.    Since your physical presence with the client is always important, I would never advise stipulating to an “all-remote” configuration without first securing the client’s consent.

The advantages to being in the same room with the client are numerous;  you can more easily confer about privilege issues,  the review of exhibits by both you and the client is more “deponent-friendly”,  conferences during breaks are easier to have, and of course your physical presence is inherently reassuring to the client.  If you’re going to be present in the room with your client,  social distancing protocol means that you’ll likely need to have your own laptop with you so that your objections may be clearly picked up by the court reporter.

Exhibit Protocol Review

The protocol concerning exhibits needs to be reviewed with counsel prior to the day of the deposition.   To the extent that counsel can be persuaded to provide you with the exhibits in advance,   such a request should be made.   If counsel intends to use the court reporter or software such as TrialPad to place exhibits before the client only during the examination itself,  you should ensure that counsel informs you ahead of the deposition as to how the exhibits will be provided for review.  Then, once you know the protocol for exhibits,  you need to apprise the client of the protocol.

Changing Deposition Preparation Techniques

Finally, the preparation session has to be different, in ways large and small.   If you’re comfortable having the client appear in person at your office to prepare,   by all means encourage it (but I would advise against it if it would require the client to take public transportation),  as my experience suggests that in-person preparation is generally more effective.   If remote preparation is your only option,  obviously a simulation of the remote deposition is necessary.   Since you may not know the protocol for exhibits until a day or two before the deposition,  it is advisable to conduct the “walk-through” only after you’ve been apprised of the protocol.    Supplementation of remote preparation through video preparation—using for example,  the EmpowerLegal deposition preparation video—will add a layer of comfort for the client.