I have been deposed dozens of times over the course of my career as an expert in forensic history and environmental cost analysis. Due to COVID-19, however, I recently sat for my first remote deposition wherein all parties (myself, defending attorney, deposing attorney, court reporter, and observers) were in different locations across the country and were connected to the deposition using a digital platform. Given that remote depositions will be increasingly common for the foreseeable future, I would like to offer a few insights on how experts (and their attorneys) can best prepare for remote depositions.
Master the Logistics
While self-evident, experts and their attorneys must master the logistics behind remote depositions. Sitting for a deposition is stressful enough without also worrying about computer or audio/visual issues. Dealing with such concerns prior to the deposition allows the expert to focus on the task at hand: providing the best and clearest possible deposition testimony. Accordingly, experts and their counsel must dedicate time during deposition preparation sessions to practice with the software and hardware packages that will be employed during the deposition. While this will take time away from “traditional” deposition preparation, it is essential that the expert and their counsel work out any kinks well in advance of the deposition.
Below, is a list of issues experts should consider before sitting for a remote deposition.
- Hardware, Software, and A/V Check. Internet connectivity is the single most important issue to address, as it is vital to establish an adequate and uninterrupted connection. Next, the expert should determine what hardware will be used and then test all speakers and cameras to ensure their proper functioning. If using a personal computer for audio and video, have a backup plan in case of Internet connectivity or hardware and software malfunctions. To the extent possible, have an IT specialist on-call to assist with issue resolution.
- Consider using two large monitors. One can be used as the primary video screen and the second can be used to view, scroll through, and annotate exhibits.
- Spend the time necessary in advance of the deposition to set up your space and equipment to your liking and specifications.
- Make sure to have an alternate audio source available and consider the use of a land line. Using a computer or cell phone audio may not be optimal for the court reporter to develop an accurate record.
- The day of the deposition, arrive early and retest equipment, computer settings, and audio equipment.
- The matter team should try out the various full screen and image tile options available with remote software packages to determine which will work best for the expert, so he/she maintains focus throughout the testimony.
- Be sure to have familiarity with mute options for both computer and any alternate audio. Also be familiar with options for being on and off screen.
- Deposition Setting. Carefully determine where the expert will physically sit for the deposition. Home office? Work office? Work conference room? Once chosen, critically examine lighting, heating/cooling, background noise, and other aspects of the space to ensure that the expert is clearly visible (especially important if the deposition will be video recorded). A few days before the deposition, participate in a virtual deposition to check the camera and other hardware. If the expert decides to use a home or work office, determine the scope of the camera picture during the test and ensure the background is appropriate. Clean any white boards or bulletin boards and clear materials from the surrounding area, particularly client confidential information and matter files.
- Make sure the expert is always on camera. Avoid having half-a-face or top-of-head video shots when reading exhibits.
- Consider sitting in a conference room as opposed to an office, as it may help eliminate distractions.
- Turn off all automated computer alerts and keep e-mail closed during the deposition.
- The expert should plan to have sufficient beverages, snacks, lunch, etc.
- Be sure to confirm what materials the expert will be allowed to have during the possession. For remote depositions, experts can typically only bring a complete clean (no marks, notes, marginalia, etc.) copy of their expert report to the deposition. However, a pen/pencil, calculator, etc. may also be acceptable depending on the circumstances.
- The expert should leave his /her cell phone(s) and matter-related materials in another room.
- Attendees. Determine whether the expert and the defending attorney will be in the same room. If so, confirm the audio/visual needs to ensure that both the expert and the defending attorney can be seen and heard clearly during the deposition? If not, be sure to have a preparation session where a third party asks questions so the expert and defending attorney have ample time to get comfortable with the remote technology. This will help the expert determine the cadence that should be used in answering questions and the time needed for the defending attorney to interpose objections. Do not let the deposition be the first time the expert and defending attorney are together on video.
- Practice, Practice, Practice. During the days leading up to the deposition, all preparation sessions both internally and externally should be done using a remote platform. This will allow both the deponent and the attorney(s) to get comfortable with the technology, which will help the expert maintain focus during the deposition. The day before the deposition (or earlier if possible), the expert should practice using the specific remote deposition software that will be employed during the deposition. There are several software packages and platforms (e.g., Veritext, TrialMax, etc.) that can be used, and each has nuances that should be made familiar to the matter team.
- My deposition utilized Veritext’s software package. The day prior to my deposition, I had a training session with company representatives to familiarize myself with the software and to practice how to navigate through the system. Take full advantage of any training sessions offered.
- You may want to practice using Microsoft Teams, Zoom, or another platform to get comfortable with being on camera, muting your microphone etc.
Executing a Successful Remote Deposition
If the expert devotes the necessary time to mastering the logistics of a remote deposition, the actual deposition should be similar to an in-person deposition. That said, there were a few idiosyncrasies to a remote deposition that bear mentioning.
- Speak Clearly and Slowly. As with any deposition, experts should speak clearly and slowly in responding to questions. In remote depositions, experts should be sure to look directly into the camera when responding to questions. Doing so reflects confidence in your answer and allows you to pick up any non-verbal cues from the deposing and defending attorneys that are more difficult to see and interpret in this format. Additionally, as is common in any deposition, experts should pause before answering any question to allow their counsel the opportunity to object to questions. This is especially important in remote depositions where there may be a voice delay due to the quality of the Internet connection.
- Avoid Complacency. During any deposition, experts can be lulled into a sense of ease or false security by the nature of the questions being asked, or the cadence of the questioning attorney. This can be particularly true during remote depositions, when you are alone in your space. The expert should do everything in their power to stay alert and focused during the entire deposition. The expert should avoid being lulled into “video chat.” And, as with any deposition, carefully consider each question before answering it. Finally, while the format may appear a bit less formal, dress comfortably but appropriately as you would for any deposition.
- Carefully Consider Exhibits. If an exhibit is introduced and displayed on the screen, it should be reviewed carefully and thoroughly. Even if the deposing attorney draws the expert’s attention to a specific passage, request time to familiarize yourself with the entirety of the document before responding to any questions. Many deponents work with, or are used to having, hard copy exhibits placed in front of them. This will not be the case in a remote deposition, so it is imperative that the expert take the time to read, scroll through, and perhaps annotate the documents being displayed. This is something that should be addressed in the preparation sessions.
- Ensure Access to Counsel and the Project Team. Communications with the matter team (e.g., in-house attorney, defending attorney, expert support professionals, etc.) is another important consideration. Depending on the jurisdiction where the lawsuit is filed, once the expert is off-the-record (e.g., during breaks) discussions between matter team members can be allowed. Decide several days prior to the deposition if and how those communications will take place and consider the logistics. For example, it may be appropriate to have an open conference line that the matter team can access during breaks and prior to and after the deposition. Of course, be sure that such conversations are permitted, occur off-the-record in accordance with the established rules for the jurisdiction, and are done outside of the deposition room.
In summary, remote depositions are increasingly becoming the rule rather than the exception. With appropriate hardware, software, advanced planning, sufficient practice, and the right team in place, experts and their attorneys should be able to adapt to this new normal.
A.J. Gravel is a Senior Managing Director and co-leader of FTI Consulting’s Environmental Solutions practice. He provides forensic history and environmental costs analysis services to clients and has served as an expert witness in those areas. He can be reached at email@example.com.