Commentary: 'Can I smoke in here?' and other virtual depo fails

By Courtney Collins and Meagan Donohoe
BridgeTower Media Newswires

The legal profession’s transition into the online sphere in 2020 was abrupt, disconcerting and sometimes painful, but it is finally official: We continue forward, but (mostly) virtually. Hearings, mediations, arbitrations and — most commonly — depositions have vacated their more traditional law office settings and imposing courtrooms in favor of bedrooms, closets and even vehicles.

Mercifully, after months of forced practice, it’s safe to say that most of us in the legal profession have a pretty firm grasp on the technological side of things (even if we still forget to unmute ourselves from time to time).

But while everyone was focused on learning the online platforms and adjusting to the new reality, something was lost, and that was decorum.

Although there is a certain comfort associated with appearing for a deposition from home — which can alleviate some anxiety a witness might experience in a less familiar and more formal setting — the pendulum seems to have swung wildly in the other direction over the past several months, with some virtual depositions looking more like a cocktail party of friends and acquaintances.

Legal proceedings should not fall prey to the new world of T-shirts and flip flops and other work-from-home habits. It is critical that witnesses are afforded the same level of support and guidance from counsel while appearing virtually as they would be if they were present in the same room. In fact, in some ways, these witnesses require an even higher degree of support to be successful.

Sprinkled with cautionary tales from real depositions over the past nine months, this article offers tips and best practices for supporting your witnesses in a virtual world. 

Be present ... in mind and virtual body

It’s no secret that many deponents, especially first-timers, can have a difficult time shedding those pesky deposition jitters. Although being deposed from a familiar place affords a certain sense of security for many, there is also a reassurance that comes with sitting in arm’s reach of your attorney at that long wooden table that is just not attainable in the online space.

The witness knows counsel is on her side when she is right next to her. Everyone is “in it together.”  However, just because you can’t be physically present for your witness doesn’t mean that you can’t provide that same level of support in other ways. It simply must be more intentional.

All witnesses, especially inexperienced ones, like to feel safe and protected, and that can only happen virtually with a present and attentive counsel. Far too often we see defending attorneys fail to appear on camera, leaving their witness feeling alone and exposed in the virtual space.

Of course, no one can control if his or her computer decides to act up on deposition day, and sometimes calling in off-camera is the only option. However, when possible, counsel should be on camera and engaged, supporting their witnesses.

This entails more than just showing up on screen. It also means not appearing visibly distracted with other work during questioning, not eating lunch, and not jumping on and off camera or walking around. Witnesses, especially nervous ones, pick up on these subtle cues more than one might think.

To put it simply, your virtual witnesses should receive the same level of attention as your in-person witnesses would. If you wouldn’t bring other work, snacks or take calls in a pre-pandemic deposition room, you shouldn’t do it in the online setting, either.

Lead by example

Since depositions have moved online, we’ve also witnessed a steady decline in general respect for what a deposition actually is. We have seen a witness smoking a cigarette while providing testimony, another witness appearing shirtless from bed, one witness answering questions while driving his semi-truck for work (cue an accident?), and a plaintiff unable to complete his own deposition after smoking marijuana on a break.

It goes without saying that behavior like that, even if not recorded on video, often results in less than optimal witness performance and would have never been deemed acceptable in the pre-pandemic era.

To combat this witness mentality that virtual is synonymous with “anything goes,” it is important to remember that even in the online space, witnesses look to their counsel for cues and guidance.

Attire is one example of how counsel can set the tone. We have regularly seen attorneys appear sprawled out on their couch (not kidding), sporting backwards hats, and even wearing well-worn T-shirts. That sets a low standard for others. It all starts with the lawyer, and clients/witnesses will quite literally follow suit.

This is not to say that attorneys need to show up to a virtual deposition in a tailored three-piece ensemble, but the nature and seriousness of a deposition should not be minimized simply because it is occurring online. At the very least, it is worth a pre-deposition conversation with the witness to note that proper attire is required: clean, decent and not revealing.

Additionally, don’t be afraid to nip any negative behaviors in the bud. Remaining quiet while your witness lights up a cigarette only serves as affirmation that such action is acceptable.

While an initial moment of silence may be an understandable consequence of shock or surprise, failing to address these types of behaviors in a timely fashion is a mistake, and will likely just lead to additional bad conduct down the line. Simply request a break, get on the phone with the client, and remind him or her that this is a legal proceeding.

Create a focused environment

Simply because technology enables participation from almost anywhere does not mean that should be encouraged.

Failing to address the location and environment with your witness often results in witnesses connecting from unusual or even public places.

We have seen witnesses participate in depositions while serving customers at work, walking down a noisy street, working out on a treadmill, and even riding a crowded city bus.

Those types of environments not only disrupt the flow of a deposition, but they make it nearly impossible for witnesses to bring their “A-game,” as the chance of distraction is ever present.

At the end of the day, most fact witnesses have never participated in a deposition before, much less a virtual one. Simply instructing a witness to download Zoom on a mobile phone and click a link at a certain time leaves too much up to chance. Take the same measures when scheduling a deponent for a virtual deposition as you would for an in-person meeting.

Pre-pandemic, witnesses would only be put on the calendar for a date/time that they were free to come sit in an office. Similarly, a virtual deposition should only be scheduled for a time when the witness can be in a quiet space, free from distractions.

Conclusion

Although anything can derail a deposition or legal proceeding, virtual or not, the above tips help to move cases forward without sacrificing quality.

Virtual does not equate to casual. Recommitting to the seriousness of a deposition under oath and guiding your clients through how to best handle this will ensure an easier path forward, as virtual has likely made a permanent imprint on the legal community.
—————
Courtney Collins is a litigation consultant and Meagan Donohoe an associate litigation consultant at Magna Legal Services.