PREPARING FOR A REMOTE DEPOSITION

By now you have heard of, or even participated in, a deposition taking place remotely via a webcam-based platform. In cases where depositions could not wait, the legal community was forced to adapt to the changing rules limiting in-person meetings. While it seems like restrictions may ease by summer (at least enough to accommodate 6-8 people in a large conference room), the virtual medium may remain an appealing option for some, especially those where geographical distance between attorneys and the deponent is a factor.

Remote depositions may be a new form of our work, but the rules for preparation are not. Attorneys and witnesses should continue the best practice of meeting early to discuss the substance and scope of the witness’ testimony, and (ideally) a second time to engage in a practice question and answer exercise. The rules of testimony do not change when it comes to a remote deposition, but there are a few additional steps that should be considered when preparing for webcam testimony.

1. Confirm which platform will be used with opposing counsel.

To make the most of a preparation session, the environment should mimic the actual deposition. Just like we would recommend that a typical deposition practice session be conducted in a conference setting similar to the one where the deposition will take place, we recommend using the same platform when preparing for a remote deposition. That means, conferring with opposing counsel to find out what platform they intend to use. While Zoom seems to be the platform of choice, there are other options such as GoToMeeting, Cisco Webex, Skype, and Microsoft Teams. Most platforms operate similarly but learning the nuances of the screen layout, control functions, and logon steps before the day of the deposition is critical to reduce unnecessary technical stress.

2. Request that speaker mode be used.

Most webcam meeting sites allow for multiple viewing options of the meeting participants. The gallery view (aka grid or tile view) is popular for large group meetings. But when it comes to a deposition where most of the “conversation” is taking place between two of the participants, the gallery view creates a distraction for the deponent. Ask opposing counsel before the deposition who will attend the deposition, and request that the non-speaking participants either mute their video or that the witness and questioning attorney “pin” each other in speaker mode so that each is only seeing the other during questions and answers.

3. Conduct a “tech check” with your witness.

As soon as you know what platform will be used for the deposition, make sure you and your witness download the program and have the proper equipment at home (computer with a microphone, camera, and sufficient bandwidth – inquire with your platform’s help center for details on connectivity specifications). Practice connecting with your witness at least once and get comfortable with the various view modes and platform functions such as screen sharing and digital drawing.

4. Set up the screenshot.

We have all seen the memes, SNL skits, and social media posts depicting nightmare scenarios with web-based meetings – embarrassing backgrounds, bad camera angles, poor lighting, or a cat randomly jumping in view. While those types of distractions may not matter for the weekly team meeting or your son’s virtual classroom, they are credibility killers in a deposition. A few tips for making sure your witness is making the best screen appearance:

1. Create a distraction-free background. The background behind the witness should be as blank as possible (think about the video screens videographers bring to in-person depositions). If it’s not possible to set up your computer in front of a blank wall, consider other things you can do to create an appropriate background – clear away art, books, family photos, or other personal items behind you. Another option is to hang a solid-colored sheet or portable divider behind you. Some programs allow you to create a virtual background or blur your own background. While this may seem like a good option, it often has an amateur green-screen effect that blur the outer edges of your image. So, always test this function and be sure parts of your body do not disappear or distort as you move about your virtual background.

2. Camera Angle. Your witness should be looking straight at the screen. When laptops or iPads are used, the camera angle tends to come from below the witness’ chin (no one wants to be looking up someone’s nose). A good camera angle allows for the witness to make direct eye contact with the camera, be seen from the mid-chest up, and take up most of the screen (with only a few inches between your head and the top of the screen). If a laptop or tablet is the only option for your witnesses, make sure they lift the device with risers or books.

3. The lighting in your room makes a big difference in how your image appears on the screen. Back and side light create shadows on your face. Avoid sitting with a window behind or to the side of you. Front-lit lighting fills up the frame and creates an even tone. If you cannot place your camera with a window in front of you, a movable desk lamp or selfie-LED light can be adjusted to create front-lit light. Play around with different lighting options – close curtains, turn on overhead lights, move your computer, etc. – until you find the best light.

5. Practice looking directly at the camera.

Talking to someone on a screen is very different than talking to someone face-to-face. Our tendency is to look our conversational counterpart in the eye. But where is that on a computer screen? When the tile view is used, the questioner may be in the bottom left corner, and the witness in the top right. The grid layout increases the chance that the witness will be looking away from the camera answering questions. If you have ever sat in a mock trial, you have heard jurors make all kinds of suppositions about what it means when a witness looks “down and to the left” or “up and to the right.” Eye contact is among the most influential factors in jurors’ assessments of credibility. Accordingly, you should take enough time to practice having your witness look directly into the camera. This brings me back to the recommendation to have your witness “pin” the speaker to their screen. People gain a lot of nonverbal meaning from looking directly at those who are speaking to us. As an alternative to looking directly into the camera, if the questioner’s tile fills the entire screen, the witness is able to be virtually face-to-face with the attorney (which is essentially the same eye level as the camera) allowing the witness to maintain steady eye contact and avoid the wandering eye syndrome created by the gallery view.

6. Don’t forget the rules of testimony.

All the rules of deposition testimony and speaker credibility still apply. Amid the nuances of the virtual platform, it may be easy to overlook the preparation steps to ensure that your witness is prepared to give the best verbal and nonverbal testimony possible. For more on witness credibility, stay tuned for Ted Prosise’s blog later this week focusing on ethos in the courtroom, see our prior publications, or contact a Tsongas consultant.

There is no doubt that the in-person deposition is still the preferable method, but for now we need to adapt to the rules and comfort levels that are sure to dictate our behavior for the foreseeable future. Following these preparation tips will help make your next remote deposition smoother and more effective.