Litigating in a Pandemic:
How Remote Depositions Have Changed My Practice

Seemingly overnight, the COVID-19 pandemic changed the landscape of the legal industry. With the sudden shift to remote work, in-person activities such as depositions are now being conducted almost exclusively in virtual settings – and likely will be into the future. Unforeseen benefits of remote depositions, including efficiency gains and cost savings, have led to widespread acceptance throughout the legal industry.  

Whether you are taking or defending a remote deposition, there are strategic considerations and questions that need to be addressed to ensure a smooth proceeding. We spoke with top litigators from Perkins Coie and Shook, Hardy & Bacon to uncover how the pandemic has changed their practice and to gain insight into lessons learned as we look toward the future and the new normal.

Technology Considerations for Remote Depositions

As the adage by Benjamin Franklin goes, “If you fail to plan, you are planning to fail.” Preparation is a key factor in running a successful remote deposition. As Karen Lisko, Senior Litigation Consultant at Perkins Coie, points out, it’s important for witnesses to “make themselves seem as professional as possible when they’re being deposed.” Having the right equipment is key. To assist in this process, we’ve put together a Remote Deposition Witness Kit featuring equipment recommendations, including:

• Quality Microphone: In a remote setting, it’s especially important that everyone’s audio is crisp and consistent.
• Wired Headphones: While many people have Bluetooth headphones, they are not always reliable as connections can fail. It’s recommended to have a set of wired headphones readily available should they be needed.   
• “In-person Lighting”: If people are too shadowed, they don’t appear as alert and engaged as they should in the deposition chair. There are many options for finding optimal lighting, including selfie rings, avoiding sitting in front of windows and even moving a lamp next to your laptop.
• Real Background: Virtual backgrounds can work, but when moving around, people often fade into the background. Having a physical, solid background is the most reliable method to ensure a consistently clear picture.  
• Laptop: Most witnesses have one laptop available, but many don’t have access to a second laptop or monitor for viewing exhibits on another screen.
• Laptop Riser: Elevating the laptop helps ensure the witness is making eye contact with the webcam. You can purchase a laptop riser or use something you have in your home, such as a cardboard box.

Prior to the deposition, it is crucial to ensure all parties are comfortable with the technology platform and process. Barak Cohen, a Partner at Perkins Coie, recommends running practice sessions in a sandbox environment ahead of the deposition to get familiar with the platform and to establish the best setup. Additionally, Barak recommends leveraging your litigation support services provider for assistance during the remote proceeding with exhibit sharing, breakout rooms and more.

Digital Exhibit Sharing

There are various methods that can be used to facilitate exhibit sharing in a remote environment. From sending documents via the chat functionality of the remote platform, to screen sharing or uploading exhibits into secure private folders within an online platform prior to the deposition, it’s important to find the method that works best for you.

Jon Strongman, Partner at Shook Hardy & Bacon, shares that it’s important to ensure the witness knows they have the right to review a document in its entirety. Karen Lisko added the recommendation of granting them access to control the screen, which allows them to scroll through the document at their own pace.

Cultivating a Witness’ Most Authentic Demeanor

There are definite differences to how someone comes across on video, versus when they’re in person. To help witnesses become as comfortable and conversational as possible, Karen Lisko shares these tips for creating the most authentic witness demeanor:

• Speak at a slightly faster rate than normal to avoid coming off as confused or unsure of answers
• Reduce vocal fillers such as “um,” “right,” “for sure” and “literally”
• Speak a little louder than you would in person to help portray confidence and energy
• Create definitive sentence endings with voice fluctuation
• Lean forward within the chair to appear more engaged
• Limit natural gestures such as talking with your hands
• Establish eye contact through the screen
• Wear neutral attire against a neutral background to limit potential distractions

The Future of Remote Depositions

As we look ahead into 2021 and the future of the legal industry, it’s clear that remote formats for depositions and other proceedings are here to stay. Matt Keenan, Partner at Shook Hardy & Bacon, points out the cost savings from remote proceedings. He shared a headline from Amazon about how they’ve already saved $1 billion in travel expenses due to the coronavirus pandemic. Matt believes we’ll see stronger momentum pushing toward this remote technology in 2021 and beyond. Barak Cohen adds, “We should be embracing this platform and being strategically thoughtful about how we can make it work for us and our clients.”

For more tips, insight and advice for conducting remote depositions, check out the full on-demand webinar, Litigating in a Pandemic: How Remote Depositions Have Changed My Practice below.