Civil Litigation: Are Zoom depositions making us all a little crazy?

The “new normal” of practicing law remotely has its challenges. Zoom depositions are one of them.  Preparation is tedious. Computer screens notoriously freeze mid-sentence. And how about those lawyers who love using the limitations of virtual testimony to feed helpful hints to their witnesses?

As annoying as they can be, Zoom depositions are likely here for good. They are cost-effective, timesaving, provide easier accessibility for all parties involved, and help insulate us from contagions.

There are three things you are trying to control during a deposition, and all are more difficult with Zoom — your evidence, your witness, and your opposing counsel.

Here are a few pointers learned over the past year:

Controlling Your Evidence

1. Premark exhibits, make an index, and organize exhibits to chronologically follow along with your outline of inquiry.
2. When you save an exhibit in your laptop for use at the deposition, format them to properly display on screen automatically and call it the name you want to use when speaking with the witness so that your transcript will match the electronic exhibit.
3. Send all your exhibits to the court reporter the day before the deposition.
4. When showing exhibits to a witness, you can share the screen from your own computer — this works if you don’t have many documents to manage — avoid having more than a couple documents open on your laptop so it’s easier to discern one from the other.
5. If there are several photos, put them into a PowerPoint — it is easier to pull one PowerPoint that contains 50 photos than sort through dozens of JPEG images on your laptop.

Controlling Your Witness

1. Advise the witness that you have agreed to certain rules during the Zoom deposition and, if the witness cannot agree to the terms, you will have to reschedule the testimony in person.
2. Ensure the witness is alone in the room from which he or she is broadcasting by having the witness hold up the camera and do a 360 in the room.
3. Ensure the witness does not have a smartphone or second computer in the room to phone, text, or email a friend for help.
4. Enumerate the usual stipulations and explain them to the witness — this will serve as a reminder to opposing counsel that all objections, except as to form, are preserved.
5. Remind the witness they should not review material related to the case during breaks unless all counsel agree that they will be reviewing something specific.

Controlling Your Opposing Counsel

1. Don’t let opposing counsel answer for the witness under the guise of “helping” with the unusual format.
2. Don’t let opposing counsel direct the witness not to answer a question, unless they can articulate some privilege that applies to the subject.
3. Remind defending counsel that the witness is supposed to answer the question even if there is an objection (typically, only a privilege or a court order limiting testimony can prevent the witness from testifying).
4. If opposing counsel is being an obstructionist, remind them that Rule 221.1 still applies, even in this unusual EBT format.
5. Keep track of the elapsed time during breaks so that you do not cheat yourself on the 7 hours to which you are limited.

A refresher on Rule 221 is particularly helpful when dealing with difficult lawyers in Zoom depositions. Harold A. Kurland, Esq. wrote a good summary of Rule 221.1 in the notes of West publication of CPLR 3115. See also, Freeman v Fayson, 41 Misc.3^rd 1236(A) (New York County 2011), that discusses various common speaking objections and explains why they do not provide a proper basis for directing a witness not to answer a question.  The overall theme is that objecting counsel cannot tell their witness not to answer a question based upon most of the reasons that we tend to hear day to day. It does not matter if defending counsel doesn’t like the form of the question, or doesn’t understand the question, or that the question is a hypothetical, or seeks an opinion from the witness or because it assumes facts not in evidence, or because it is hearsay or any other reason of that ilk. As the deponent you are still entitled to have the witness answer the question.

If you should experience objections and interruptions in a Zoom deposition, there are remedies. The bottom line is that obstructive conduct by attorneys in the guise of zealous advocacy is improper — Zoom or no Zoom.

Margaret E. Somerset is Partner in Underberg & Kessler LLP’s Litigation Practice and Health Care Practice Groups. She focuses her litigation practice on representing individuals, health care providers, and small businesses.