Pandemic or not, depositions potentially pose your one and only opportunity to assess the witness’ credibility so that you can guide your client or cases accordingly.
With approximately 90 percent of cases settling, depositions remain the most important discovery tool. They breed candor, whether the witness likes it or not.
Depositions also are critical to building your foundation for a successful motion for a summary judgment or impeachment at trial.
Rich R. Maguire (Maguire Cardona) and Christian J. Soller (Hodgson Russ) examined the best practices for virtual depositions as both a winning strategy for attorneys and as an ethical requirement on the CLE Webinar, “Taking and Handling Virtual Depositions.”
“The ability to effectively conduct virtual depositions is arguably an ethical requirement,” said Soller. “You have to learn how to do it and learn how to do it effectively.”
Soller said it also is consistent with the new uniform rules in the Supreme and County courts, which went into effect Feb 1.
“Video makes attorneys accountable, to play by the rules” said Soller. “Those of us who do this day in and day out know that transcripts do not often tell the whole tale or they miss the tone of your voice. Sometimes shenanigans go on.”
He explained that one lawyer can claim that the opposing counsel is yelling at the witness but it might be the attorney’s natural voice. “A video pierces through all of that and captures the real deal. A court can look at that.”
He recommended that attorneys consider getting ahead of any anticipated issues by urging the Court to set parameters before the deposition by, pointing to words or deeds that suggest the plaintiff’s counsel would engage in such chicanery.
Absent special circumstances, Soller observed that the courts are generally compelling virtual depositions. In the wake of the coronavirus pandemic, what was once extraordinary has become routine.
A recent court case, Rodriguez v Montefiore Med. Ctr. 2020 NY Slip Op 20349, upheld that: “Ultimately, a party’s apprehension concerning innovative discovery techniques must, subject to the various protections afforded by the law, yield to the realities of coronavirus-era litigation, lest resolution of litigants’ rights and obligations be unnecessarily and unjustly delayed.”
The American Bar Association’s Model Rules of Professional Conduct Rule 1.1 Comment 8 states: 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.
Get everyone on the same page
Maguire has practiced for more than 30 years and developed his own style and methods for conducting depositions, but “2020 changed everything.”
He has since been involved in more than 100 virtual depositions. “We’ve come a long way in what we’ve learned.”
He has learned from mistakes and technology mishaps and refined his strategy. Simple steps such as acquiring a Wifi Extender helped him ensure consistent connections during virtual depositions and purchasing an external microphone resolved audio issues when sharing a laptop with clients.
Among the best practices he has developed, the top one is to get everyone on the same page. This include specifying the setting in the notice of deposition and being mindful of time zone issues. Participants must agree on the platform (Zoom, WebEx, Teams), and no off-record conversations between witness and counsel should occur, unless seeking advice regarding the application of privilege or immunity.
Recorded videos in digital form by the court-reporting service may be used as if it were recorded by a certified videographer and each side waives objections based on authenticity.
The greatest challenge he has found in virtual depositions has been sharing exhibits and its underutilization. “I have found very few lawyers are using the screen share function in Zoom,” said Maguire. “Lawyers should practice and prepare to use virtual exhibits during a virtual deposition.” He demonstrated its effectiveness by displaying a police accident report while he spoke. All parties can see it, ask questions and refer to key points simultaneously.