Techniques for Virtual DepositionsZoom depositions are wonderful. You have your entire case file at your fingertips. You have the entire internet at your fingertips. You can show your screen to the witness and the jury whenever you want. You can highlight, annotate, or zoom in on the evidence at will. The supposed disadvantage to remote video depositions—that the witness is less likely to be intimidated without your physical presence—is overblown in our opinion, and to the extent it’s a real concern, is outweighed by the many advantages of this method.
But they take work. We have found that Zoom depositions can be more effective than their in-person predecessors, but making them more effective takes more work. They also take some technological skill. At this point, we lawyers need to be technologically proficient—the days when a trial lawyer could say ‘I hate computers’ and shrug off technological changes are long, long gone. We are all in the technology game now, like it or not.
We’re still fine-tuning our virtual deposition strategies—making improvements after each one we take—but in this article, we share what we’ve learned so far. Throughout the article, we refer to some remote video depositions that we recently took using Zoom and that you’ll find online at https://butlerfirm.com/free-information/techniques-for-virtual-deposition/.
Our favorite part of virtual depositions, by far, is the ability to share your screen. Popular video conferencing platforms allow you to share your entire screen or a specific document or video. This feature allows you to show your witness an exhibit without the cumbersome process of handing out copies or positioning another screen to show a video. Crucially, taking for-trial depositions, is faster because the time interval between the witness’s prevarication and the revelation of the truth is much smaller, which makes for more effective cross-examination.
Videos of some illustrative examples are available at https://butlerfirm.com/free-information/techniques-for-virtual-deposition/. We recently deposed a defendant police officer in a police brutality case against the City of Atlanta. We played video clips from the officer’s body camera showing him breaking our client’s ankle with a forceful tackle, marching our client around on the broken ankle, and mocking our client. He lost all credibility when he tried to justify his conduct. We’ll share those video clips once the case is over. For instance, an example of using screen-sharing to rapidly impeach a witness in a for-trial deposition, see 02:32:24 in the deposition of the CEO of a guardrail company.
The video conferencing apps also allow you to give the witness control of the screen. This can be useful for getting a witness to mark-up an exhibit, such as identifying where a collision occurred or highlighting a specific point on the screen. For an example, see our deposition of a truck driver at 00:14:40.
However, the Zoom deposition-taker must be wary of certain virtual deposition pitfalls. In a recent deposition, one defense lawyer accidentally shared his entire screen, instead of just the exhibit, which revealed a private chat among all the defense lawyers. The message read, “[defense lawyer] has no time for Jeb’s ‘nice guy’ schtick,” to which another responded, “does anyone?” We had a good chuckle over it. Don’t be that lawyer.
Prepare Exhibits Ahead of Time
To seamlessly use the screen sharing function, you should prepare all exhibits before the deposition. We number our trial exhibits from the beginning of a case and use the same numbered exhibits throughout depositions. We generally give the most important evidence low numbers and keep similar exhibits close together, e.g., important photos from the scene of the incident would be ‘Plaintiff’s Exhibits 20-29.’ Executing this method means you have to think about trial from the very beginning of the case by taking into account what evidence you currently have, what evidence you anticipate having, and how you want to present it to the jury. The benefit of this front-end work will be realized at trial. For example, when you play a deposition clip or use it to impeach a witness at trial, the deposition exhibit numbers will match up with the trial exhibit numbers. There are also more immediate benefits. For example, by pre-marking your exhibits, you can cut time sharing documents in the deposition.
The Internet is at Your Fingertips
Another great part of virtual depositions is the ability to pull up any website or document on your computer. This can be particularly helpful for having a witness describe the scene of an accident. In a recent deposition, the deponent claimed he couldn’t see our client until he drove over a hill, but the witness couldn’t identify the distance of the hill from the collision, which was an important fact. We pulled up a Google Maps Street View image to show him the hill, and had the witness mark the exact point our client became visible. You can see this example in the deposition of the truck driver at 1:01:00.
Taking breaks in a virtual deposition can also be helpful. If a thorny legal issue arises or if you need to refer to your file, you can take a break to do some quick research or refer to the file. In a recent Rule 30(b)(6) deposition of the Georgia Department of Transportation, the defense lawyer made an objection under an unfamiliar federal statute and instructed the witness not to answer. We took a break from the deposition and researched the statute, which revealed the lawyer incorrectly instructed the witness to not answer. We were able to quickly put together a list of questions to tee up a motion to compel.
Invest in Good Equipment
Virtual depositions might be the way of the future, so invest in good, high-quality equipment, like a high definition camera, microphone, good lighting, and multiple screens. We find that having three screens is preferable because it allows you to use one screen for the video conference, one screen to show exhibits, and another screen to access your file.
Chat Function to Share Exhibits
With virtual depositions, you can’t toss an exhibit across the table to defense counsel. Thankfully, the video conferencing apps have a chat function that allows you to instantly send files to others attending the deposition.
As the times continue to change, it’s important to be prepared to use video conferencing for depositions and hearings. One plus from virtual depositions has been the opportunity to be creative with deposition taking. Everyone is still figuring out the art of virtual depositions but being familiar with these tips will allow you to be creative, which, in turn, will lead to better depositions. If anyone has any questions or wants to discuss our virtual deposition strategies feel free to email us at email@example.com and firstname.lastname@example.org.
ABOUT THE AUTHORS
Jeb Butler is a partner at the Butler Law Firm, where he handles serious personal injury cases. He graduated magna cum laude from the University of Georgia School of Law, where he published in the Law Review, competed in the National Moot Court competition, finished in the top 10 percent of his class, and won a scholarship. Now, Jeb handles personal injury cases through trial and has been recognized as an outstanding advocate by organizations such as Super Lawyers, Georgia Trend, and National Trial Lawyers. He regularly speaks at seminars and writes for legal publications. Jeb has earned millions for his clients through trial and settlement. He can be reached at email@example.com or at 678-940-1444.
Matt Kahn is an associate with Butler Law Firm, where he focuses his practice on representing individuals who have been seriously injured or killed due to the negligence or wrongful conduct of others. Butler Law Firm specializes in cases involving serious injuries or death and difficult corporate defendants. Matt is an active member of GTLA and a graduate of the Class of 2020 LEAD program. He can be contacted at firstname.lastname@example.org or 678-940-1444.