The number of remote legal proceedings hit a peak a few years back, but the end of the COVID-19 public health emergency doesn’t mean a reversal to pre-pandemic logistics. While they can have some drawbacks, virtual depositions, hearings, and trials offer cost and time savings, and people today are increasingly familiar with video streaming platforms and protocols.
So what does that mean for your remote witness or client? Simply sending your client or witness a remote meeting link and having them hop on their laptop or smartphone won’t cut it —there are unique challenges to positioning your witness to effectively tell their story and make themself understood in a virtual environment.
Remote witness testimony simply refers to a witness participating in a live legal proceeding held virtually rather than in-person.
While the pandemic forced change faster than the legal industry was accustomed to, remote testimony wasn’t invented in 2020. Under Federal Rule of Civil Procedure 30(b)(4): “parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” (1)
As for trial testimony, the Federal Rule of Civil Procedure 43(a) guides the court to “permit testimony in open court by contemporaneous transmission from a different location” when there is “good cause in compelling circumstances and with appropriate safeguards.”
Remote testimony refers specifically to live streaming—not to a video or audio-recorded testimony.
Just as in an on-site proceeding, a court reporter is required to capture a verbatim record and produce an accurate transcript. Oftentimes, a legal videographer is also present along with the court reporter to create a video record of the proceeding.
For a video deposition, the use of streaming technology does not provide blanket intent or notification to make an audio or video record supplemental to the transcript. Even if a deposition is taken remotely, the virtual deposition notice must still indicate: (2)
In short, yes. Zoom is among the most popular video conference platforms and can be used for legal proceedings. Other remote conference platforms include:
While these generic remote conference platforms technically would work for remote legal proceedings, it’s recommended to use a platform built specifically for the legal industry. These proprietary platforms offer features, functionality, and security specifically for legal professionals, including exhibit introduction and annotation tools and private sidebar rooms.
The trial, deposition, or other event may be remote, with each participant logging into a meeting platform from a unique location, or hybrid.
In a hybrid event, some or most of the attendees gather in a courtroom, conference room, or other location and view remote attendees on a screen while they interact through the virtual platform.
There may be an administrator or host who handles the platform features such as:
Regardless of the meeting format, there are useful tips to share with your witnesses, such as providing concise and true responses, not volunteering information or speculating, and understanding which type of questions they aren’t required to answer.
When the proceeding is remote, there are specific challenges to address. Alert your witness to:
Preparation is key for effective remote testimony.
Ensure your client or witness has received their notice of the proceeding and will be able to attend as scheduled. Take the same steps you’d usually use to prepare them prior to the event:
For in-person depositions, participants are often asked to arrive at least 15 minutes early to grab a beverage, see where the bathrooms are, and get settled.
With a remote deposition or trial, arriving timely consists of two stages:
A worst-case scenario is a witness trying to click the event link when scheduled to join, only to be met with software, audio, or video roadblocks. Ask them to test the platform and their hardware as soon as the proceeding is scheduled.
Your witness may need:
On the day of the proceeding, request that they settle in about an hour ahead of time to ensure there are no last-minute updates or glitches to address, and then log into the event 15 minutes early.
If you, as the attorney, are presenting documents or physical evidence, make sure those will translate to the remote environment. Be sure to prepare the following:
Whether you use a proprietary system or another meeting platform, pull together a simple resource to share with your clients (and make sure you know all the tips yourself).
This may include how to:
It became a bit of a joke at the height of the pandemic that remote meeting participants just needed a formal shirt worn above pajama pants and bunny slippers, but your witnesses need to take self-presentation seriously at a trial or deposition. Rising suddenly to adjust the lighting or to get a glass of water shouldn’t set off a round of giggles.
Similar to a live proceeding, witnesses should:
While not everyone will be connecting from a conference or courtroom, your witness shouldn’t be attending from a coffee shop or a hoarder’s paradise. Aim for:
Additionally, ask them to ensure lighting and device setup that offers a well-lit view even with their face or torso—avoid upward-facing camera angles, backlighting, and ring light reflections.
As with an in-person proceeding, a court reporter will be tasked with capturing a verbatim deposition transcript. This means:
This doesn’t mean asking your witness to speak robotically or avoid all emotion. Displaying pain, frustration, or regret where it exists—in ways that are appropriate to the environment—is appropriate and even useful. Just make sure they understand the need for clear, singular, well-paced speech in general, and that they may be asked to repeat anything that is unclear.
When you’re in the driver’s seat for a remote deposition, partner with a services provider who knows how to get the job done right.
U.S. Legal Support offers remote deposition services and support on a platform purpose-built for legal proceedings, with intuitive, custom features and top-notch technical support to help you make the most of your remote deposition.
For nearly 30 years, we’ve provided total litigation support to attorneys across a range of practice sizes and types. With a 5,000+ network of court reporters, comprehensive record retrieval and analysis, and litigation consulting, we help support you and your cases effectively and efficiently.
Connect with our team today to discuss your remote deposition and other legal support services.
Content published on the U.S. Legal Support blog is reviewed by professionals in the legal and litigation support services field to help ensure accurate information.