Lawyers who are used to doing depositions in person should not let this new paradigm of Zoom constrain them, instead, they should double down on it.
Covid-19 may have started a new wave for how depositions and mediations will be done in the future and new and old lawyers should get used to them being executed via Zoom.
Lawyers who are new to Zoom depositions and mediations should practice a few times and remember perfection is not necessary. You should consider this new concept with an open mind and eventually you may find it fun, a time-saver, and different in a good way.
I have personally conducted around 25 mediations and well over 50 depositions if not more since the pandemic began and my office has done even more.
From personal experience over the last year, I have concluded that Zoom Depositions are better. Why?
- You can conduct them from anywhere (home or hotel).
- Easy to record all you have to do is (1) Click record, (2) record to the cloud, and (3) pin video on deponent.
- Zoom also provides helpful functions such as screen sharing, exhibits, ability to highlight PDFs while talking.
- Zoom allows you easy access to deponent’s documents on screen that they cannot escape from which seems to work better.
- Zoom also forces me to be organized and get all exhibits I may need together earlier.
- Exhibits can be accessed and jumping from exhibit to exhibit is also easier.
- Never have had a concern that answers were being suggested to the deponent.
- Clients and Co-counsel can easily attend.
How Zoom can be Helpful for Exhibits
Zoom allows you to share the screen with exhibits and allows you to blow up language effectively.
However, it is important to have your exhibits ready to present. Do not open or try to find where they are saved for the first time during the deposition.
A helpful tip is to name the files to the exhibit number, for example, 1-photo, 2- police report this will help you access the document you are referring to quickly. It is also helpful to share the google file with the opponent of all the exhibits the day before.
A trick I found helpful is you can also create a new exhibit during the deposition and can google relevant information and turn them into exhibits while attending the deposition.
Zoom also allows you to be able to have exhibits to show doctor’s medical records during depositions so they do not have to find theirs. Lastly, it is important to be familiar with the documents produced by the defendant so you can be prepared to use them.
Further, doing depositions on Zoom makes you have all exhibits in a Google folder which is easy to provide to the court reporter. This process also makes it more convenient to share the folder with remote staff and other lawyers who make be working on the case with you.
Another helpful tip I have come across through my experience is you can highlight PDFs of documents with stuff you would like to use in the deposition.
The two ways that I use are: (1) having two separate copies of an exhibit – one clean and one with highlights. The advantage is to not signal the other side what you are going to use. (2) One copy of the exhibit pre-highlighted which gives you a signal of key things to focus on.
It can also be useful to pull other documents from the defendant’s production and show them to the witness by screen share. Remember – this document is not required to be an exhibit at first you can show photos and documents to see what the witness knows and what the good documents are and then mark them as an exhibit.
Here’s the video of our Zoom CLE:
Recording Depositions on Zoom
In the past, I have used my Sony Handicam to record depositions however Zoom recording is absolutely great. I find it better because it intensifies to the witness that they are being recorded.
After all, they are looking at their face on a big screen right in front of them ensuring that they know exactly what is being recorded.
From experience, I have found that witnesses tend to give me more information when doing a Zoom deposition. For example, I have had many defendants admit liability in crash cases and policy violations in other cases.
This process also can make witnesses look bad when they are lying or playing games and you can see it in real-time on your screen. Remember to be careful about your facial expressions because you are being recorded as well.
Different Tricks that I find Resourceful
One trick I find helpful is having my deposition notes in a word document in front of me and then minimizing the zoom screen.
You can get even more creative by using a Google doc shared with co-counsel or paralegals for them to suggest questions for you.
This can also work with other useful documents in front of you which allows you to use them for language and not tell the other side or deponent what you are doing and latter share or never share that document.
Issues Conducting Zoom Depositions and Mediations
Zoom depositions and mediations do come with problems. Often someone is on mute and they do not realize this and are talking. Also, poor wireless connections can arise at any time.
One thing I have learned to avoid issues is prepping my clients on Zoom as a test run at least the day before and not letting the first time they get on zoom and answer questions be at the deposition.
People may have the understanding that they are just on Zoom and do not take it as seriously. This is important to be dealt with in preparation.
Zoom requires more deposition preparation. Also, if we are using notes, a Deponent may be using notes. Also, lawyers have the ability to text clients in depositions to take a break.