Navigating Virtual and Conventional Depositions: The Plaintiff Perspective

Speaker:
Ryan T. Donovan
Managing Partner, Conway, Donovan & Manley PLLC

Depositions are a crucial component of the discovery process in litigation, providing attorneys with an opportunity to gather information, assess the credibility of witnesses, and shape the case strategy. Traditionally, depositions have taken place in person, but with advancements in technology, virtual depositions have become increasingly common. From a plaintiff’s perspective, each format presents distinct challenges and opportunities. Understanding these differences is important for crafting an effective deposition strategy.

Conventional (In-Person) Depositions: Advantages and Disadvantages

Advantages:

1. Body Language and Non-Verbal Cues: In-person depositions allow attorneys to observe the deponent’s body language and reactions. This can be crucial for gauging sincerity, credibility, or emotional responses, which may not always be conveyed through virtual formats.

2. Control Over the Environment: Attorneys have more control over the physical space in conventional depositions, such as choosing the location, managing distractions, and ensuring confidentiality. The physical presence of the deponent and all involved parties can lend a more formal atmosphere, which might help in controlling the deposition flow.

3. Easier Cross-Examination: It can be easier to maneuver when conducting cross-examination in person, as attorneys can adjust their questions in real-time based on the witness’s reactions. The dynamic, face-to-face interaction can create a heightened sense of pressure for the deponent.

4. Improved Technical Reliability: Traditional depositions are free from technical glitches, which are sometimes a concern with virtual formats. The risk of technical failure, such as poor connectivity or audio/video issues, is virtually eliminated in conventional settings.

Disadvantages:

1. Logistical Challenges: Conventional depositions often require significant travel, scheduling coordination, and time investment for both attorneys and witnesses. These logistical hurdles can be burdensome, particularly if witnesses are located out of state or in difficult-to-reach locations.

2. Higher Costs: Traveling, booking venues, and covering other related expenses increase the overall costs of in-person depositions. For plaintiffs with limited resources, these costs can be prohibitive.

3. Witness Intimidation: Some witnesses, particularly those who are less familiar with the legal process, may feel intimidated in an in-person setting. This could impact their ability to provide clear and accurate testimony, potentially harming the plaintiff’s case.

Virtual Depositions: Advantages and Disadvantages

Advantages:

1. Convenience and Accessibility: Virtual depositions allow participants to join from virtually any location, making it easier to schedule and reducing travel and logistical constraints. This is particularly advantageous in multi-jurisdictional cases or when the witness is overseas or in a remote location.

2. Cost-Effective: By eliminating travel expenses and venue costs, virtual depositions can significantly reduce the overall cost of litigation. This is especially important for plaintiffs who may face financial constraints in pursuing a case.

3. Witness Comfort: Some witnesses may feel more comfortable testifying from the comfort of their own home or office. Virtual depositions may reduce the intimidation factor associated with formal, in-person settings, leading to more natural testimony.

4. Recordkeeping and Technology Tools: Virtual depositions often involve built-in tools for recording, annotating, and sharing documents. These tools can enhance the deposition process by allowing for more efficient handling of evidence and streamlining the record-keeping process.

Disadvantages:

1. Limited Observation of Non-Verbal Cues: Virtual depositions may make it more difficult to observe a witness’s full range of body language and non-verbal cues. This is particularly problematic when trying to gauge the witness’s credibility or emotional reactions.

2. Technical Challenges: Connectivity issues, audio/video delays, or problems with the platform used for virtual depositions can hinder the flow of questioning and create disruptions. Even minor technical glitches can result in valuable testimony being lost or distorted.

3. Decreased Control Over the Environment: In a virtual deposition, it’s harder to control the witness’s surroundings, and there is always the risk that the witness may be coached or influenced by others off-screen. There’s also the possibility of witness distractions that can interfere with the deposition process.

4. Witness Engagement: Some witnesses may struggle to engage with the virtual environment. Testimony may be less focused or less compelling compared to an in-person setting. Jurors (in cases that go to trial) may also perceive virtual testimony as less authentic or impactful than in-person testimony.

Plaintiff Considerations: Strategy for Virtual vs. Conventional Depositions

1. Witness Preparation:

   • In-person: Preparation for conventional depositions should focus on the witness’s demeanor, attire, and handling of in-person pressure. A plaintiff's attorney must ensure the witness is prepared to handle physical cues from opposing counsel, as well as maintain composure in a formal setting.
   • Virtual: For virtual depositions, witness preparation should focus on technical aspects (ensuring reliable internet, a quiet space, proper lighting, and clear audio). A plaintiff’s attorney must also prepare the witness for the challenges of engaging with the technology and avoid potential distractions.

2. Dealing with Difficult Witnesses: In-person depositions provide more control, and the presence of the plaintiff's attorney can be intimidating for evasive or hostile witnesses. In virtual depositions, there may be a greater opportunity for witnesses to disengage or minimize their responses, so the plaintiff’s attorney must develop strategies to maintain focus and engagement.

3. Ethical Considerations: The virtual format introduces potential concerns about witness coaching or interference, especially if the witness is not in a controlled environment. The plaintiff’s attorney must ensure that the deposition process is conducted ethically, and the opposing counsel is held accountable if any improper behavior arises.

4. Jury Perception: In cases where the deposition will be played in front of a jury, the plaintiff’s legal team should consider how the jury will perceive virtual testimony versus in-person testimony. Some jurors may be more inclined to trust testimony that they perceive as more “genuine” and “personal,” which could make in-person depositions a stronger tool in certain cases.

Conclusion

From the plaintiff's perspective, both virtual and conventional depositions offer unique advantages and challenges. While virtual depositions provide flexibility, cost savings, and convenience, they may limit non-verbal communication and pose technical risks. Conventional depositions, on the other hand, offer a more controlled and interactive environment but come with higher costs and logistical challenges. A plaintiff's legal team must carefully consider the specifics of their case, the nature of the witness, and the potential impact on the overall trial strategy when deciding which format to use.

Ultimately, a balanced approach, tailoring deposition strategies to the case’s needs, will ensure that the plaintiff can effectively gather testimony, assess credibility, and prepare for a successful trial.