During the COVID-19 pandemic, remote depositions and virtual jury trials dominated the legal system. While this change was necessary to address the public health crisis, it was also a very accelerated process. With the speed that the legal industry adapted these practices, many haven’t had time to evaluate the great experiment.
This May, the American Bar Association’s Litigation Section held the 2021 Virtual Annual Conference. During the conference, a panel of virtual advocates and one judge discussed their experiences with remote proceedings. In this article, we’ll take a closer look at the key takeaways from that panel.
Let’s get started!
Takeaway #1 – Time-management is crucial
After months of quarantine and social distancing, many people have begun to experience Zoom fatigue. For that reason, attorneys have a responsibility to present their cases in clear and concise terms. Plan to use your time with witnesses as efficiently as possible and prepare your exhibits in advance. Panelist and law firm partner, Kathleen B. Campbell suggests planning for “double or triple the length of time it usually takes to deal with exhibits.”
During in-person proceedings, long-winded and vague questions are an inconvenience; but in a virtual trial or remote deposition, they can derail the entire proceeding! Confusing questions are likely to be misunderstood by witnesses and elicit confusing responses. Prepare disciplined and unambiguous questions to make the most of your time. Panelist Tynan Buthod, a partner at Baker Botts LLP Houston, suggests approaching the case as if you were working with a translator or deposition interpreter. “It forces you to shorten your questions. It forces you to make sure that your question is a clear yes or no,” Buthod explains.
(Remember: it’s very challenging for anyone to maintain focus after a few hours of uninterrupted screen time, so don’t be afraid to incorporate more breaks into your schedule than you did before the pandemic.)
Takeaway #2 – Use courtroom decorum
Unlike a casual Zoom call with friends, there are certain standards you’re expected to meet during a remote deposition. Attorneys should not be multitasking, checking messages, eating or conversing informally with associates. Always treat the proceedings with the same respect that you would offer to an in-person session.
While these guidelines are fairly obvious, panelist Robert M. Spector offered some unexpected advice! Spector, who serves as a U.S. magistrate judge for the District of Connecticut, suggests using cameras and equipment that are meant for individual use. Using an existing camera setup that is meant to accommodate a group will make it very difficult to see your face and can lower the quality of your audio. Furthermore, without the ability to make eye contact with participants, you risk listeners losing focus.
Takeaway #3 – Prepare your witness for a close-up
As attorneys and litigants adapt to a newly remote justice system, witness preparation efforts must be updated to reflect recent changes. Lawyers need to communicate the importance of body language in virtual settings. In fact, Judge Spector commented: “If we’re in a courtroom, I can’t see a witness the way I can see them on Zoom. On Zoom, I can really see facial expressions. I can see somebody roll their eyes. I can hear them sigh. Everything you do can be seen close-up and personal and you can’t get away with things you may have been able to get away with in a courtroom.”
Lawyers have a responsibility to ensure that their witnesses deliver testimony from a distraction-free environment. Witnesses should avoid testifying in the bedroom or household locations with numerous visual distractions in the background. Seemingly small things such as a spinning ceiling fan or a cluttered desk can be a source of distraction for the fact-finder, even when they don’t have that effect on the witness.
Thanks for reading! We hope this panel review has given you some useful tips you can use while preparing for future remote depositions. If you enjoyed this article, feel free to share it on social media!
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