Fueled by the need to pursue justice while keeping safe amid the pandemic, mobile videoconferencing is transforming depositions, arbitrations, and overall communication in the litigation world.
It’s also helping legal professionals comply with the lawyer’s duty of competence, which reads:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.”
But how do you ensure your remote videoconference deposition runs smoothly? Here are ten best practices to get you started.
#1: Agree on Respective Locations Ahead of the Mobile Videoconference Deposition
A typical deposition includes the deponent, deposing counsel, opposing counsel, court reporter, and at times, a legal videographer and interpreter.
You should, therefore, agree on each participant’s location during the deposition, well before time. That is, whether they’ll be appearing remotely or social distancing in the same room.
The deponent requires more attention. Will they appear at a location that’s equipped for videoconferencing, such as reporting agency or law firm office? Or will they be confined in their homes?
In the case of the latter, determine whether they have adequate technology at home. If not, consider providing the needed equipment or delaying the discovery process until the issue with limited technology is resolved.
While at it, consider whether local rules require the deponent to be in the same room as the court reporter (say, to administer an oath.) If so, seek advance leave of court or stipulate on the deposition notice that the parties involved waive that requirement.
Ensure the court reporter has everyone’s consent on the record not to be physically present with the witness. All parties should also consent to conduct the deposition through the selected legal-first app.
In a nutshell, your deposition record should specify:
- That the deposition will be conducted remotely
- The deponent’s location
- The participants’ appearances
- You can try something in the line of: “At their option, the witness and his counsel will participate in the deposition in person at his counsel’s office. A court reporter, defense counsel, and an interpreter will appear by videoconference.”
#2: Decide How You Will Tackle Exhibits During the Deposition
Mobile videoconference deposition means as an attorney: you lose the ability to control documentary exhibits physically. Thus, you should decipher how to go about it beforehand.
Will you send the exhibits to the witness’s location days before the deposition? In which case you’ll need to:
- Scan the documents in color and convert them to PDF
- Share the exhibits with relevant parties in advance. That can be through email, mailing a disc, file-sharing via Google Drive, Dropbox, etc.
- You can also have the court reporter handle the exhibits (if the pricing is favorable.)
Bear in mind that sending exhibits in advance allows the opposing counsel the chance to review them and plan a counter-proposal.
#3: Prep the Court Reporter
Instruct the court reporter to make it known whenever they do not hear a response to the question posed.
That’s particularly important if the technology in use allows only one voice at a time. In which case, when attorneys interpose objections, it can be difficult for the court reporter to hear a quick “yes” or “no” response.
Sometimes, you can see the witness’s lips moving and hear their response but the court reporter has not. So it’s essential to have them countercheck whenever in doubt. Otherwise, you might receive an unpleasant surprise upon reading the transcript, only to find an answer to a critical question missing.
Besides prepping the court reporter, be proactive during the deposition. If you think the reporter may have missed something (especially relating to a favorable answer), ask them on the record if they got it.
#4: Prep the Deponent (If You’re their Counsel)
First, instruct the witness about the deposition rules. Then broach the issue of outside interference.
Instruct the deponent to:
- Ensure they are alone in the room
- Let you know if anyone joins them in the room during the deposition
- Only look at the screen (it could be a cellphone, notepad, papers, etc.)
- Not to look at anything else when on the record (unless otherwise instructed)
- Respond to all the questions by themselves, without looking to anything or anyone else for help. (And to let you know if they cannot answer a particular question by themselves.)
- Pause some seconds before responding or beginning to speak because of the audio lag over the internet
- Not communicate with anyone else, besides you, when on the record
- Not respond to any messages from anyone during the discovery process
#5: Avoid Technical Issues
Confirm how the witness will be appearing for deposition. At a minimum, they need:
- A web-equipped device with a camera and microphone (For example, laptop or tablet)
- High-speed internet connection
- Access to a legal-first video conferencing software
If you, the deponent, or any other participant does not have an updated computer, use a smartphone. In such a case,
- Don’t use the phone to text or respond to emails while participating in a mobile videoconference deposition. (Such sounds can interrupt the audio feed to the court reporter or legal videographer.)
- Keep the phone on the charger if possible
- Close unnecessary applications
- Turn off app notifications
- Adjust the brightness to dimmer settings
- Use a phone case with a stand – to eliminate a shaky picture
High-speed internet connection
Having a hard-wired CAT-6 or CAT-5 connection is preferred when recording the video. However, most Wi-Fi connections can suffice – especially if participants stay close to their wireless router. In case of persistent internet troubles and you’re not recording the deposition, the participants can join the videoconference by phone.
(Alternatively, check whether your court-reporting services offer a mobile or tablet Wi-Fi hotspot. If not, seek one that does.)
Before the conference, have the deponent measure the strength of their internet signal. They can do that by Googling the “Wi-Fi speed test” and going by one of the numerous websites in the SERPs results that checks the connection speed.
If the strength is okay, they can maintain it by limiting the number of people using the bandwidth.
Legal-first videoconferencing software
Ensure the videoconferencing software is reliable, user-friendly, and with relevant features. It should be HIPAA-certified, Government-certified, and compliant with critical legal regulations.
The app should produce quality video and audio. And allow for a full-screen view (and videographer recording) of one person, if needed.
You can also go for a remote legal proceeding platform that provides additional features, such as:
- Preloadable and on-the-fly exhibits with live annotation capability
- Secure sidebar rooms for private client conversations
- Near instant rough transcripts and option for certified transcript within days
- HD video synched to the searchable transcript
- Picture-in-Picture video
- Interpreters with legal experience
Every participant should have a working knowledge of the software features to better present compelling questions and answers.
Before the deposition, familiarize yourself with the selected videoconferencing technology for easy navigation. Take time to acquaint yourself with exhibit-screen sharing and other relevant functions.
#6: Perform a Test Run
Enroll IT expertise to ensure the videoconferencing connections operate smoothly – days before the deposition. That’s particularly helpful if the deponent is appearing remotely – from their home or hotel conference room. You don’t want to discover too late that:
- The deponent location’s internet connection is too slow or not working
- Nobody present knows how to troubleshoot the video connection.
For best results, the court reporter can assemble all the participants on the mobile videoconference deposition platform. After which, you can enlist the help of IT experts to ensure there are no technical issues.
- The internet speed
- Audio and video functions
- Ability to upload and share exhibits
- Whether the respective rooms are well lit
#7: Dress Professionally
Wear pastel, solid colors. Avoid stripes, polka-dots, and plaids. Stripped clothing creates the moiré pattern, an uncomfortable optical effect on video that can cause eye strain and headache.
You can also leverage the videoconferencing software to touch up your appearance – using a softening filter to help you appear like you slept for eight hours the night before. You can also use the blur background feature to i. add a professional appearance and ii. increase the privacy of your space.
#8: Record the Video
The deposition video can be invaluable, especially if the witness will be unavailable during the trial.
However, mobile videoconference depositions are not recorded automatically. If you want the session recorded, you should notice or stipulate the deposition properly ahead of time. The same goes if you plan on leveraging the software’s built-in video recording capability.
The best practice is to obtain a stipulation of counsel or leave of court in advance for recording the deposition. Be sure to put the said stipulation on the record.
If you don’t want the witness to be recorded, perhaps you fear their testimony will be memorized on video, follow the laid out protocol for noticing the deposition. In such a case, avoid noting the process as a video deposition – as doing so may permit the opposing counsel to reflexively videotape.
Now, high-quality video is received better in court than a shoddy one. As such, see to it that:
- A legal videographer is physically present with the witness
- The witness is in a well-lit area
- The videographer has a high-quality camera to capture clear, sharp images
- (You have a charger close by and that the witness remains hands-free; when using a mobile device.)
If the legal videographer cannot be physically present with the deponent, your other option is to record the witness remotely on the screen. Or leverage the built-in video recording capability. Test-run to confirm that both video and audio are being captured and recorded. Also, ensure the internet connection is adequately fast to enable high-resolution recording.
#9: Be Aware of the Proceedings
You may be comfortable attending the deposition within the comfort of your home, but keep in mind that what you’re doing is being seen (and probably heard) by all the participants. Not to mention recorded by the legal videographer.
- Close email, web browser, and other unrelated programs – leaving only the video-deposition platform. (The goal here is to eliminate the chance of accidentally displaying your deposition outline or confidential emails to everyone.)
- Sit up straight and strive to remain on the screen
- Speak as if having a physical 1-on-1 conversation. (For best audio, join the audio conference via mobile phone or use a headset/earpiece for listening. Alternatively, use USB microphones or external webcams over the standard built-in microphone on your device.)
- Leverage the video-deposition platform settings to suppress background noises
- Mute your audio when not actively speaking or replying
- Speak and ask questions at a slower pace to avoid overlapping conversations. There may be a time gap between speaking and getting heard because of the audio lag over the internet. So pause some second before responding or beginning to talk in general.
- State your name when objecting so that the legal videographer and court reporter can identify you for the record
- Look directly into the camera lens (instead of people on the screen) for more natural interaction.
- Limit your physical movements or move slowly to avoid distracting other participants
- Follow the 20/20/20 rule to prevent eye strain.
#10: Have a Backup Plan in Case of Technology Failure
How will you handle tech failure? Will you reschedule if you cannot establish a video connection? Suspend the discovery process if the technology fails mid-position? Or will you proceed with the deposition telephonically? And if you suspend the discovery process, will you get the witness back another time?
To prevent making snappy decisions,
- Test your tech connections in advance
- Have a back plan
Choosing the Best Remote Videoconference Deposition Software
To sum up, you can proceed with scheduled depositions via videoconference applications instead of telephonically or in person. Planning and testing in advance dictate how smoothly the process runs. Choose a robust legal-first deposition software.
Remote Legal Court Reporting offers a one-of-a-kind system with expert court reporters and all the tools needed to conduct a mobile videoconference deposition.
Being a legal-first app: the software is designed to meet unique legal proceedings requirements.
Schedule a demo to see how the system could work for you. Schedule a demo today
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