Although I have conducted several out-of-state depositions by the use of “Skype,” I just recently experienced a deposition by Zoom. The deposition was arranged by a court reporting service. The parties and their counsel and the court reporter were connected by Zoom and audio was supplied by separate phone line. The court reporting service had an administrator to assist with the use of documents. The administrator conducted a test with the attorneys the day before the depositions and asked the attorneys to submit documents for use in the deposition prior to the depositions so that she could easily provide them. Having experienced my first “Zoom depositions,” I have the following thoughts.
The pros
Scheduling of Zoom depositions is a lot easier than scheduling in-person depositions, primarily due to the lack of the need to account for travel. In the recent case, I save 4 hours of driving time for both me and my client. The other party saved a couple of hours. Of course, this can be a massive expense savings for the clients.
Zoom depositions are very convenient because you can remain in your home or office and do not have to travel at all. The same applies to the clients and possibly the court reporters too.
As an attorney doing the questioning and sitting at my computer with all of my documents available to me, I found it very easy to review materials while taking the deposition. I also found it very easy to make notes without the fear that they were being seen by the other side while sitting at the same table.
Taking the deposition from my office or home is much more comfortable and there is no risk that I will be placed in an uncomfortable or unsuitable arrangement in someone else’s office, which happens quite a lot.
Because everyone is pictured, it is very easy to see what everyone else is doing. This is in contrast to in-person depositions where I frequently find that I can only focus on the deponent.
The experience of the Zoom deposition seemed to place everyone at ease and in good humor.
The cons
Something indescribable is lost in not being in the same room with the people.
Your client is not right next to you and something protective about the attorney-client relationship to seems be lost by that.
The mechanics of using documents is a little more difficult without being in the same room. Work needs to be done to prearrange the use of documents. Work also needs to be done to allow attorneys to control the documents. Additionally, work needs to be done to make it easy for attorneys to use documents which were not previously thought to be needed.
Since the deponent is in another room, and controls the camera, the opposing attorney cannot be sure what the deponent is looking at. In other words, deponents can be reviewing documents, communicating with their attorney or other persons by use of their iPhone, or even looking up information on the internet, all of which might be impermissible in the normal setting.
There is a chat function on Zoom which can allow an attorney to communicate with his client who is being deposed and possibly dictate what should be said. This communication can take place privately. Perhaps rules should be developed which would forbid chatting, although enforcement would be difficult.
Audio might be a problem and make it more difficult for the court reporter to transcribe exactly what is being said. All parties should take care to make sure that it is understood exactly what is being said.
Miscellaneous thoughts and best practices
Do not allow cell phones, particularly by clients.
If clients are not tech-savvy, care should be taken by each attorney to make sure that the client is practiced before the deposition.
All parties should be encouraged to mute themselves until they wish to speak. This will prevent problem background noise, inadvertent statements, and sound problems.
Thought should be given to how breaks can be taken without having to reinitiate the call or the Zoom.
Although talking over one another is always a problem whether in person or not, the court reporters should take charge and direct who should speak.
Consider carefully the background that shows during your visual portion. Zoom allows you to select backgrounds or create backgrounds.
Consideration should be given in advance as to whether the Zoom depositions are to be recorded on the automatic recording function. Court reporters may feel that use of this function may deprive them of the sale of transcripts, but it can be a very useful function for everyone.
If more than one person is participating from the same location, such as a client coming to his attorney’s office, reverberation of sound when telephone audio is used is a problem. There is a time lag between hearing the conversation in person and over the phone.
It seems that the pros would outweigh the cons in most stances, particularly when some of the practices are refined. The use of Zoom depositions should be the wave of the future, even after the coronavirus passes.
*”Zoom” was the medium used in this deposition, but there are of course several other ways to accomplish this such as Skype, GoToMeeting, Facebook messenger, etc.