The abrupt change from in-person practice to virtual depositions has stirred quite a debate in the legal industry and raised many questions. Are virtual depositions here to stay? Perhaps most importantly, does a virtual deposition transcript count as evidence in a court of law?
While there may exist some controversy as to their efficacy, virtual depositions are, in fact, effective and reliable. Indeed, they could quickly become the new norm, even as COVID-19 abates.
As remote depositions are still in their infancy, it remains to be seen how broad an impact video conferencing could have on the legal profession. Some experts argue it could lead to “Law 2.0,” where virtual depositions become the standard rather than the exception.
One thing is certain; regardless of how things return to normal, some form of virtual deposition will stick around. But the big question remains: Does a virtual transcript count as evidence? This guide will focus on the efficacy of virtual depositions in court proceedings.
What Is a Virtual Deposition Transcript?
A deposition is a pre-trial testimony given under oath, typically in and out of the court setting. The opposing attorney asks the questions, and the deponent answers them. The court reporter records the proceedings to create the official transcript, which can be used in a trial.
A virtual deposition, also known as remote deposition, is when a witness provides testimony remotely via a video recording. The Federal Rules of Civil Procedure and all 50 states allow depositions to be conducted remotely via video conference or telephone.
A virtual deposition allows all the parties involved to participate from an online environment through a laptop or mobile device with an internet connection. A virtual deposition transcript is then created, which can be used in a trial.
Remote depositions are now more popular than ever. As the world becomes more digitally connected, virtual depositions are viewed as a cost-effective, efficient, and necessary strategy for achieving the objectives of legal proceedings.
Does a Virtual Deposition Transcript Count as Evidence?
The short answer is yes; a virtual deposition transcript absolutely counts as evidence.
The law has specific requirements for recording and presenting virtual depositions, which should be observed to make them admissible in court. These requirements are defined in the Federal Rules of Civil Procedure, namely Rule 28 and Rule 30.
These requirements stipulate that:
- A neutral individual should administer the oath
- The deposition must accurately record the witness’s testimony
- The attorney’s and deponent’s appearance should not be distorted during the recording
- The video should not be edited or interfered with by either party
- The process must maintain the integrity of the deposition
The video deposition should not be recorded by an attorney, according to Rule 28. Instead, the role should be fulfilled by a qualified officer trained in video production.
Rule 30 stipulates that the recording must be certified to be used at trial.
In the Alcorn v City of Chicago case, the U.S. District Court for the Northern District of Illinois held that video recording using teleconferencing software, either mainstream or an advanced platform created for legal use, is inadmissible without such certification. The court also ruled that a virtual deposition transcript cannot be certified by the court reporter.
Virtual Deposition vs. In-Person Depositions: Similarities
Virtual deposition and in-person depositions share a common ground in many ways, including:
In both scenarios, the witness gives evidence under oath, and a written transcript and/or virtual deposition transcript are produced.
The oath may be administered in person or remotely. However, some states have specific requirements for the proper administration of remote oaths.
For instance, some courts require the person administering the oath to verify the witness’s identity. Others require the person administering the oath to attend the deposition by the same remote means (e.g., videoconference or teleconference).
The participants in a virtual deposition are the same as those who attend a physical deposition, including:
- The witness
- The council taking the deposition
- The counsel defending the witness
- The court reporter
- A videographer
- An interpreter (if necessary)
Both virtual and physical depositions are conducted following a formal deposition notice.
The taking of a remote deposition, however, requires the notice to include specific language about the recording method to be used.
Document sharing is a common feature in both virtual and physical depositions.
In traditional in-person depositions, it’s easy to share documents with the witness as all parties are typically in the same room.
Likewise, many remote deposition platforms also have features that let you upload documents and exhibits in advance and share them with the witness during court proceedings. In fact, some platforms allow the witness and the attorney to incorporate electronic markings in real-time.
Whether the deposition is virtual or in-person, client involvement is not restricted. In both instances, the client can communicate in the same manner with all participants.
Virtual Deposition vs. In-Person Deposition: Differences
Remote depositions are used in the same way as in-person depositions, but there are key differences to keep in mind between the two.
The key differences are in preparation and mode of delivery, as shown in the table below.
|Digital copies of files are used||Physical copies of files are used|
|Documents and exhibits shared online||Documents and exhibits shared physically|
|Parties ensure teleconferencing tools are working properly before the meeting||Parties ensure the meeting space is reserved and in a good condition|
|Parties limit background noise as much as possible||Parties dress professionally as they would in a court proceeding|
|No travel expenses||Incurs travel expenses|
Remote depositions are convenient, provide easy access to files, and are sometimes considered more productive. Because attorneys don’t need to travel anywhere to attend a virtual deposition, they can attend more proceedings, leading to increased availability and revenue.
It’s important to note that many mainstream video conferencing tools aren’t built for legal proceedings and, as such, give rise to a couple of problems. For example, security issues, technical issues, and accidental screen sharing are known problems that adversely affect the proceedings when conducted on mainstream platforms.
Are Remote Depositions Always the Right Choice?
Remote depositions conducted on a specially designed legal platform are a secure and efficient means for conducting remote depositions. This method has so quickly become the norm that the question is no longer being asked.
In the aftermath of COVID-19, “remote vs. in-person” has become a strategic—not merely a necessary—choice for many people and organizations. Remote depositions and virtual deposition transcripts are just as effective, if not more, in most legal situations.
Still, there are a few situations that may call for considering physical depositions. In-person depositions may be considered when:
The Witness Lacks Digital Competence
In situations where the witness lacks adequate basic technology or the digital competence to engage meaningfully in virtual deposition, in-person depositions are recommended.
State/Local Jurisdictions Do Not Permit Virtual Depositions
While all 50 states allow digital court reporting, every jurisdiction has its own rules for conducting virtual depositions.
For instance, in April 2020, Rodney Gilstrap, chief judge for the U.S. District Court for the Eastern District of Texas, prohibited all physical depositions. That order was lifted recently in light of the declining COVID cases and the progress made in vaccinating the public.
Attorneys considering virtual depositions should first review their local court rules to ensure they do not violate any deposition-related laws.
Lack of Cooperation Is Expected From the Witness
Sometimes, the witness might be too shy to appear on camera. If, for some reason, the attorneys believe they’ll encounter problems interacting with the witness during a virtual deposition, an in-person deposition is recommended.
An in-person deposition is also preferable where the level of anticipated tension is high. If the opposing counsel is difficult to work with or the witness exhibits antagonistic behavior, a virtual setting might not yield the desired outcome.
On the other hand, a remote deposition may be just what is needed in these situations. Each case that presents these potential challenges should be decided according to the needs of the parties involved.
An Agreement for In-Person Depositions Was Signed
Where an agreement for an in-person deposition was signed (and all parties agreed to attend in person), a virtual deposition cannot be held.
Aside from these special circumstances, remote depositions are becoming commonly known as an effective, accessible, and convenient way to complete needed depositions.
Are Remote Depositions Here to Stay?
Virtual depositions have long served a critical purpose in court proceedings. In the pre-pandemic era, virtual depositions were less common but still allowed us to depose witnesses remotely without the need for travel. But it was during the pandemic that virtual depositions went mainstream.
When COVID-19 rocked the world, many professions came to a standstill, with businesses losing millions and others closing down permanently. The wheels of litigation also came to a grinding halt as lockdowns and social distancing policies prevented in-person depositions.
But slowly, the wheels of the justice system began to turn again.
Judges began holding court proceedings via video conferences, and attorneys found ways to continue litigating their cases, primarily by using virtual depositions. It’s estimated that at one point nearly 90% of all depositions were held remotely.
While this number will naturally drop as the pandemic continues to ebb, new developments indicate that the increase in remote depositions is here to stay. For instance, The New York Commercial Division Rules were recently updated to permanently include remote depositions as part of the litigation landscape. Rule 37, which took effect on Dec 15, 2021, sets out new parameters for virtual depositions in commercial litigations.
Virtual Deposition Best Practices
Looking for some tips on how to ensure your virtual deposition goes smoothly? Follow these remote deposition best practices.
1. Test Your Technology Beforehand
Make a habit of testing your teleconferencing devices well before a deposition starts. The goal is to make sure everyone can see and hear you clearly and that your connection is not disrupted during the deposition. It’s also essential to test screen control before the deposition starts.
2. Get Everyone on the Same Page
When preparing your deposition notice, make it clear that the deposition will be held remotely. Specify that everyone, including your videographer and court reporter, will participate in your chosen video conferencing platform. Agree ahead of time on where each participant will be located during the deposition.
3. Ensure Compliance with the Local Laws
Review local laws on recording virtual depositions, transcripts, and videos, including the requirements for certified records and authentication.
In general, though, a virtual deposition transcript should be indistinguishable from an in-person transcript for how it can be used in the case.
4. Prepare the Virtual Environment
Ensure the deponent’s environment is acceptable, including the background, lighting, and anything else that will be visible both on-screen and off-screen.
5. Be Mindful of the Body Language
Remind your witness to be careful with their body language. People tend to be more relaxed and casual at home than in an office environment. If not prepared in advance, their body language may communicate unintended messages to the opposing counsel.
6. Prepare Exhibits Ahead of Time
As you would in a physical deposition, make sure the exhibits are prepared, marked, and stored in a folder on the secure legal platform you’re using. This can be shared with the court reporter or any other relevant party to the deposition at the appropriate moment.
Virtual Deposition Transcripts Are a New Standard You Need
Virtual depositions can be conducted from any location, avoiding the challenges associated with in-person depositions. They are effective, convenient, accessible, and a new standard in legal proceedings. A virtual deposition transcript counts as evidence in the court of law, subject to meeting the requirements set out in the Federal Rules of Civil Procedure. In this post-COVID era where technology continues advancing at lightspeed, your firm can’t afford to exclude remote depositions from your skillset. Remote Legal offers an advanced, specialized platform created for the legal profession to make your remote depositions simple and effective. Schedule a demo today to learn more about what we offer
See Remote Legal in Action
Let us show you our single source solution so you can get back to doing the things you love.