CBA Record March-April 2021

Best Practices for Lawyers Conducting Remote Depositions By Jacob B. Berger D uring a deposition, young lawyers – and indeed any lawyer – must be prepared to use all of their and a t-shirt – so, do not show up to a remote deposition dressed that way either.

multitasking skills. Successfully conduct- ing a deposition requires a lawyer to ask thoughtful questions, listen carefully to the answers, develop follow-up ques- tions on the fly based on the responses elicited, seamlessly handle documents, direct witnesses to relevant portions of the documents, and deal with objections and other interruptions from opposing counsel and even sometimes the witness. Extensive preparation, strategic thinking, and the ability to maintain a level head are all critical to a successful deposition. Even before the Covid-19 pandemic, deploying all of these skills to successfully conduct and navigate a deposition could be an unnerving and stressful experience for young lawyers. Now, in the age of Covid-19, all of the above must be done with the added stress of doing the deposi- tion remotely and impersonally through a computer screen. Whether taking or defending a remote deposition, remote depositions present unique challenges and opportunities. In particular, dealing with documents during a remote deposition can be logistically difficult and challenging for the lawyer taking the deposition, the witness, opposing counsel, and the court reporter. Below are a few best practices and tips, derived from experience, that may help you conduct a successful, effective, and efficient remote deposition. Dress professionally. Treat the remote deposition just like an in-person deposi- tion and dress professionally. This will help calm your nerves, get into the mindset and formality of the deposition, and help you look the part to the witness and opposing counsel. Dressing unprofessionally conveys the impression that you have not prepared for the deposition and that you are not taking it seriously. You would not show up to an in-person deposition in sweatpants

Be in a quiet setting where you can focus. Take or defend the deposition from a quiet setting with all distractions eliminated

you are taking the deposition, do the test run with a colleague. If you are defend- ing the deposition, do the test run with a witness to make sure that the technology works for the witness. If you anticipate exhibits, be sure to test whatever manner you intend to use to show the witness documents and exhibits, including testing the screen sharing function. Go through a few questions with the witness or your colleague using the documents/exhibits to get a feel for how you will use exhibits and ask questions. Be personally responsible for han- dling exhibits at the deposition. If you plan to use exhibits at the deposition, be personally responsible for handling exhib- its and showing the witness the exhibits. This means you will be personally respon- sible for opening exhibit files, employing the screensharing function, and directing the witness the relevant portion of the document in question. Do not delegate this task to an assistant, another lawyer, the court reporter, or a paid document man- agement service. Taking responsibility for the exhibits allows you to remain in control of the witness and the deposition, and it helps you conserve the limited time you have to take the deposition. Remaining in control significantly helps you to conduct an effective deposition and to get critical testimony you wish to elicit. Consider prearranging your exhibits in a binder and sending them to the witness. To avoid technology issues to the fullest extent possible, consider prear- ranging the exhibits you may use at the deposition in a binder, with tabs. Send the prearranged and pre-marked exhibits to the court reporter, the witness, and any

so you can focus on the deposition and listen carefully to the witness’s answers and opposing counsel’s objections. Being in a loud place with many distractions will detract not only from your ability to focus on the deposition, but also oppos- ing counsel’s, the witness’s, and the court reporter. Treat the deposition like a formal court proceeding. While the deposition is ongoing, it should be your sole focus. The best setting is a quiet conference room at your office, but if you are unable to be in the office, find a quiet setting where you can focus on the deposition. Enable your camera and use a neutral zoombackground. During a remote video deposition, your camera must be enabled so the witness, opposing counsel, and the court reporter can see you. Leaving your camera off makes people wonder if you are paying attention to the deposition or are otherwise distracted. Remaining off video also inhibits the opportunity to build a rapport with the witness to get the testi- mony you need and makes it more difficult to interact with others at the deposition. Once you are on video, make sure you are in a clean, presentable, non-distracting location. If your setting is messy or oth- erwise distracting to the witness and the other deposition participants, use a fairly neutral, non-distracting background –such as the inside of a courtroom or a solid color. Do a test run on the remote video and audio platform before the deposition. Well in advance of the deposition, do a test run employing the video/audio conferenc- ing software platform that will be used for the deposition to make sure all of the technology will work for the deposition. If

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