Managing a difficult or hostile witness is unpleasant during a standard deposition. When a witness is uncooperative, it jeopardizes the usefulness of the transcript. The deposition process becomes more manageable with time and practice. However, when you’re conducting a remote deposition, you may find yourself questioning your tried-and-true strategies.
Without nonverbal cues and body language, how can you control your witness? The first step is improving your remote deposition skills so that you can become a better advocate for your client. Today, we’re sharing some tips to help you navigate these unprecedented circumstances.
Evaluate & Modify Your Approach
How do you typically approach your witnesses? Are you casual and conversational or aloof and professional? In order to succeed in your remote deposition, you should first understand your own habits and consider how they might translate through videoconference.
Depending on how long you’ve been working depositions, you may already have a well-establish deposition style. Unfortunately, attorneys who are accustomed to a more forceful approach may need to change tactics for a remote proceeding. For example, if you often ask questions of the witness and pause for long periods of time for their answer, you’ll open yourself up to the possibility that the witness will evade the topic by asking if you’re experiencing technical difficulties. You’ll also need to be particularly careful to avoid talking over the witness or opposing counsel because that will make it very difficult for the court reporter to get an accurate record.
In a standard deposition, there are a variety of physical cues that impact your witness before they even begin their testimony. When the witness reports to an unfamiliar location with a court reporter transcribing their words and a videographer recording them, it makes the deposition feel legitimate and meaningful. By contrast, in a remote deposition, your witness will be in the safety and comfort of their own home. This changes the situational pressure for them and can lead them to treat the deposition with less authority than they might otherwise.
If you’re uncomfortable changing the way that you speak to the witness, you can still adjust your strategy for success in a remote deposition. If you know that your witness is likely to be uncooperative, invest additional time in creating tight, clean questions that offer little opportunity for evasive explanations. You can also consider spacing out your most important questions with more general admissions. People can only pay attention for so long, and spacing out your best questions will help you to avoid the possibility of the witness sensing what you’re searching for.
Clearly Direct the Witness
The remote deposition process is still unfamiliar to many people. For that reason, it’s important to clarify upfront how any technical problems will be handled throughout the deposition. When swearing in the witness, be sure they explicitly agree to be recorded if you’re working with a videographer. It’s also important to let them know how you will proceed if they get disconnected or encounter other unexpected difficulties.
Unlike a traditional deposition, there’s no way to examine witness notes, confiscate their phone, or control their surroundings. To offset this disadvantage, you can ask the witness to position themselves further from their camera, making it possible to view their upper body and hands. You may also consider adding an admonition that the witness will not be consulting notes or correspondence with their attorney while giving testimony.
Hire a Videographer
It can seem counterintuitive to hire a videographer for a remote deposition, but it’s actually highly advantageous. In order to present your video record at trial, you need a certified videographer to attend the deposition. Screen-recording or automated recordings from videoconference software would not be considered admissible.
Hiring a videographer provides the added benefit of lending an air of professionalism and legitimacy to the meeting. Being recorded makes most people feel a little uncomfortable, which can be a good thing in a remote deposition. It’s hard to get a difficult witness to treat the proceeding with respect if they’ve been using other videoconference technology to check in with friends and family. You want them to acknowledge that this is not a casual conversation, but instead it is an official deposition.