Author Archives: Steven Zweig

About Steven Zweig

Steven J. Zweig is an experienced litigator specializing in commercial disputes and breach of contract cases, who is licensed in New Jersey and New York. He is also currently the Managing Editor of Biotechnology Law Report, a legal journal about the law and regulation of biotechnology. Previously, he has been the Managing Editor for Gaming Law Review & Economics, the nation's leading gambling law journal; an executive and in-house counsel in the educational publishing industry; and a Securities Exchange Commission enforcement attorney.

Man on a computer

How Should an Expert Prepare for an Online (e.g. ZOOM) Deposition?

During the pandemic, many things that can be done remotely are in fact being done remotely: those whose jobs allow it are working at home; we interact with our friends and family online; and motion hearings are often being done remotely. Expert witness depositions are also being taken remotely.. There are a number of upsides to this, beyond decreasing potential exposure to the Covid-19 virus: for example, saving the time and travel costs associated with bringing an expert to an in-person deposition or opening up the universe of potential experts by increasing the ability to tap others who are less local.

But there are also challenges associated with online depositions. Some are for the attorney, not the expert, such as coordinating with the court reporter to make sure everything will be properly recorded. For the expert, there are plenty of things the expert should do to prepare for the deposition.

Technical & General Preparation

First, the expert should find out what software will be used for the deposition, make sure it’s downloaded ahead of time, and test the system— including the computer’s camera, microphone, and speakers — well in advance. Frantically trying to download and install the software when its “go” time does not engender confidence in your client or his or her attorney — and will not make the other side take you seriously.

Second, the expert should double check what will be in his or her background during the deposition and “stage” the setting appropriately. It may be helpful to have diplomas, technical certifications or licenses, treatises, and perhaps some tasteful and unobjectionable artwork as background. Don’t have children’s artwork, stuffed animals, the trashy novels the expert reads during his or her downtime, or anything controversial or political in view. The background framing the expert should look as professional as would the inside of the law firm conference room where in-person depositions are typically taken.

Related to this: the attorney taking the deposition may — and can — ask the expert to pan the camera around the room to make sure there is no one there feeding the expert cues or responses. Make sure the entire room is a suitable backdrop for a deposition.

Third: dress to impress. Yes, we all know that Zoom conference dress codes are generally laxer than in-person dress codes … but a deposition is the exception that proves the rule. Treat it as what it effectively is: a remote court hearing. After all, the video may be played in court — the expert should not wear anything he or she would not want a judge or jury to see him or her in. And yes — that includes work pants (or skirt) and work shoes: the expert should not assume that it’s enough to wear a dress shirt and blazer, since at some point, he or she may stand up or back-up or otherwise bring what’s below the waist into view.

Coffee or water — leaving the field of view of an online deposition presents issues that getting up from your chair in an in-person deposition does not. For example: did you get up so you could call, text, or email someone off camera, to get guidance as to how to answer? It is better to minimize, to the greatest degree possible, having to get up and break the online deposition. You can’t control bathroom breaks, but you can minimize breaks for water, coffee, or granola/energy bars: lay the refreshments out ahead of time, if you can.

Logistical Preparation — Exhibits

It’s always best practice for the expert, the attorney for the expert’s client, opposing counsel, and the court reporters to always have their own pre-marked set of exhibits. (Always pre-mark exhibits: it saves time and cuts down on confusion.) But in an in-person deposition, a failure to do so is of less moment: the parties can share exhibits on the spot, then provide extra copies later, as needed. However, that’s clearly not an option during a remote deposition, where you might have people in four, five, or more locations (e.g. the expert, the attorneys on each side, any litigants attending the deposition, and the court reporter may all be appearing from their own homes or offices); everyone needs to have their own copy in advance.

The real responsibility for marking and forwarding exhibits this rests principally on the attorney taking the deposition, but the expert should at least contact the attorney representing his or her client to make sure that copies of any exhibits are forwarded to him or her … after all, everyone is working outside their comfort zone during the pandemic and things drop in the cracks, so to speak. By checking to make sure that he or she has copies in advance of anything he or she will be questioned about, the expert can help make sure the deposition is fruitful and not a waste of anyone’s time — and if the proper exhibits are not provided to the expert, at least he or she can truthfully say that they tried and therefore are not responsible for any lapses.

Similarly, if there are materials that the expert is asked to bring, such as any treatises that he or she relied upon in coming to an expert opinion, the expert should either copy and provide shorter materials (they can be provided to the attorney representing the expert’s client, who then will circulate them) or at least provide — well in advance — the citations for any longer works, so that anyone who wants to have a copy during the deposition has the chance to obtain them.

And then there are demonstrative exhibits which are things which are not evidence in and of themselves, but illustrate key evidentiary points. They are the equivalent of the graphics the nightly news puts up to illustrate important statistics or developments. These always have had to be created in advance … but now the expert may need to create them differently. What looks good in person may NOT look good when viewed on your MacBook Air’s camera. Test the demonstrative exhibits on the video conferencing platform you are using in advance and make sure they work.

Testimonial Preparation

Experts should always review their testimony in advance with the attorney representing their client. Yes, they can’t “script it,” and the expert (and attorney) have a legal and ethical obligation to assure that all testimony is truthful … but all that said, the lawyer and expert should go over in advance what issues the opposition is expected to ask about and some “basics” about testifying — e.g. to pause a moment before answering, in case the lawyer wants to object; to not extrapolate, but only answer the question that is asked; to not be afraid to ask for clarification of an unclear question; etc.

But bear in mind that a Zoom (or the equivalent) deposition will present challenges an in-person deposition does not, such as the possibility of the deposition “freezing” at an inopportune moment or losing connection momentarily. Discuss with the lawyer representing the expert’s client how to deal with those eventualities — does the expert ask for the question to be restated after the interference or break? Does the expert leave a longer-than-normal pause before answering, to make sure the lawyer has time to object? And so forth. Assume there will be connectivity issues at inopportune moments and plan for them, so that the expert and his/her client’s attorney are reading (so to speak) from the same playbook. Do not assume that the lawyer representing your client will always be able to object in real time to problematic questions.

During the Deposition

We’ve alluded to this above, but experience teaches us that Zoom, Microsoft Go To Meeting, and similar software will have problems in practice: internet connections stutter or drop out, there are buffering issues, etc. During all depositions, the deponent — including an expert witness — should not hesitate to ask the examining attorney to restate or repeat a question. But this goes doubly for remote depositions, due to software and connectivity issues. When in doubt, the expert should ask opposing counsel to restate or rephrase his or her question.

In Conclusion

Compare a Zoom call with a friend or family member with talking with that individual face-to-face. You may find it more challenging and less rewarding. There may be parts of the conversation which were not clear or garbled. That’s for an informal, “no stakes” call. Now imagine what it might be like for a formal, high stakes call, such as you will find in a remote deposition. Plan for the inevitable Zoom-related issues in advance.

Money

Demonstrative Evidence: A Picture or Chart is Worth a Thousand Words

We’ve all heard the saying, “a picture is worth a thousand worlds.” And most of us are familiar with the idea that there are multiple different modes of learning — that is, that people process information in different ways, and that while there are certainly verbal learners, or people who learn best by reading the written or hearing the spoken word, there are people who learn best in other ways, such as visual learners, who learn best through images or pictures.

These concepts are why demonstrative evidence is your friend in court — it’s a way to empower your expert and leverage the investment your client made in hiring them.

Black’s Law Dictionary online defines demonstrative evidence as “real evidence that doesn’t depend on a testimony as it can be seen by the jury and the court.” Other legal dictionaries and treatises definite it similarly. The key part of this definition is “can be seen by the jury and the court” — that is, it is visual evidence, whether in the form of a photograph, a schematic, a chart or graph, a model, or some other graphic representation. It can be tremendously powerful and can make or break your expert’s testimony.

Here’s the thing about demonstrative evidence: as the very term implies, it “demonstrates” something. It’s NOT fact evidence — you need that separately — but it is a way to illustrate, highlight, or call out what is important. It’s the judicial equivalent of a Powerpoint presentation: a way to emphasize what should be emphasized. That means that while it ultimately needs to tie back to — and be supported by — authenticated documentary or other fact-based evidence, or reliable witness testimony, it can and should take liberties with presentation, so that the point you want to get across is driven home with all the subtlety of a presidential campaign ad.

Judges and Jurors Love Show-and-Tell

Before getting to the practical reasons why demonstrative evidence is valuable, start with a basic concept: judges are human. They are humans who spend six, seven, or eight hours per day listening to people talk, and talk, and talk. They get — to be blunt — bored. Don’t believe it? Think about how long you can listen to strangers jabber on about situations or occurrences you have no personal knowledge of or stake in. For example, think back to the last time you were at a party and were cornered by someone who described their vacation to you practically minute by minute, or by someone who obviously thought their job in risk-assessment or logistics was as fascinating to you as it is to them (or, to be fair, think about the deer-in-headlights look in the eyes of a non-lawyer you cornered at a party and subjected to a blow-by-blow description of your last trial). Bringing out photographs or other graphic evidence will get judges to sit up and take notice in a way that another thousand words of “expert-ese” will not.

And what goes for judges goes doubly for jurors, since they (unlike judges) often have no background, experience, or context to help them understand your expert’s testimony — but they can look out and understand a photograph or simple chart. Bringing out demonstrative evidence can help prevent jurors’ eyes from glazing over, which is critical, because if they tune your expert out, why even bother having the evidence in the first place.

Your expert simply can’t get his or her point across if no one is listening to him or her. Since  by the time you get to your expert, the court has typically been subjected to opening statements and a parade of fact witnesses to set the context, the judge and jurors have already used up most up of their attention span. Have mercy on them and make it easy for your expert: have the expert create and use demonstrative evidence.

Photographs: Show, Don’t Tell, What Something Looks Like

Many cases involve something’s appearance. It could be the condition of a car after an accident. It could be the contusions on the victim of domestic violence. It could be the damage to a building after a fire, or the shape a rental property is in after the tenant has moved out, or the condition of a poorly maintained staircase or walkway, etc. This is the easy and obvious case for the use of demonstrative evidence: instead of having your expert just narrate the situation (e.g. “the fire caused extensive charring to the fall behind and ceiling above the stove”), show it. The visual representation will be much more powerful and easier to grasp than any verbal narrative could possibly be.

Related cases involve comparisons between two places or objects. Say that you are defending a former commercial tenant being sued by the landlord for unpaid rent, and you want to show that the landlord failed in its duty to mitigate by asking an unreasonably high price to re-let the space. Your real estate expert could just orally describe the features of the premises in question and why they are less desirable than those of other spaces on the market at the same price — or (s)he could show and narrate photographs of the premises, showing its cramped, dark, awkward layout and contrasting it with photographs of other available restaurant space which is lighter and airier. Which approach do you think will be more effective?

A good rule of thumb is: if you can take photographs of what the expert is describing, take them and have the expert use them. And when we say “photographs,” we also mean X-rays, MRIs, ultrasounds, and so on. Essentially, if you can show what something looks like instead of just verbally describing it, it has far greater influence on the viewer. For example, if you have a personal injury case, what do you think will impact the jury more: your medical expert saying “the plaintiff had a compound fracture, which is a fracture where the skin is pierced by a broken bone,” or showing the jury a photograph of a bloody bone sticking out of the plaintiff’s leg?

The use of photographs crosses or blurs the line between actual fact and demonstrative evidence, so they will have to be authenticated by someone with personal knowledge — that is, the person who took them. And that means you need to lay the groundwork.

Lather, Rinse, Repeat & Repeat Again: Using Your Expert to Review Powerful Fact Evidence

You’ll generally have shown your photographs during your fact witness testimony. But there’s a limit to how many times you have your fact witnesses flash the same photos before opposing counsel objects or the judge him/herself tells you to move on. But if the photos are compelling, you’ll want to show them again and again — you’ll want to burn their images into the jurors’ eyes.

Have your experts show them again. There’s no real cognizable objection to the photos being shown again as your expert uses them to make some oh-so-expert-y point. You can use your expert not just for his or her expertise, but as an excuse to run your best and most affecting evidence under the fact finders’ noses again.

Graphics Which Show Spatial Relationships: Help the Fact Finder Envision What Was Where

Which is easier to understand: a map or drawing showing the location of buildings, cars, and/or people, or someone droning on and one about how “The first vehicle was in the outer northbound lane. The second vehicle was in the outer southbound lane. The second vehicle came around a 60-degree curve from the east and would have come into view of the first vehicle roughly 275 meters away . . .” etc.?

There is NO better way to show locations and spatial relations than graphically, so prepare the appropriate maps, drawings, or models (models are particularly valuable when there are three, not just two, dimensions in play — e.g. when height or elevation matters, too) for your expert and let him or her use them to show, simply, quickly, and unambiguously where the various players and pieces were. Obviously, you may need to prepare several demonstrative exhibits, to show locations at the start of an event, while it is occurring, and at the end, etc. But the goal is to be clear about what happened, so there’s no such thing as “overkill.” Either the situation is clear to the fact finder or it isn’t. If it is clear, then the effort and cost put into preparing the exhibits is well worth it. If it is not clear, then you didn’t prepare enough (or good enough) exhibits.

Blow-ups: Make the Small Big

Your expert may be testifying about fine or small points; for example, if you have a handwriting expert, he or she may be testifying about how a particular loop or curlicue differs from one hypothetical signature to another. It can be awfully hard to the fact finders to see something in the equivalent of 12-, 14-, 16-, 18 -, or even 24-point type, which is about how large most of us sign papers. On the other hand, if you blow the relevant signature elements up to 4”, 5” or taller, then everyone can see and follow your expert’s discussion of the key similarities or differences.

The same principal applies whenever any key elements are themselves small. For example, say you have a product liability case, and the part of the device/product that failed is ½” or 1” long — have a photographic reproduction of it at 10x normal scale, so that the judge on his/her bench, or the jurors in their box, can actually see it.

“Look here!”—Highlight the Critical Elements

Another advantage of demonstrative evidence is the ability to add highlighting, emphasis, even arrows pointing to the important elements or details. Not only can you blow up any small details, but you can pick them out in color or bold type, circle them, and have an arrow pointing straight at what you really want the fact finders to notice. There is no need or reason to be subtle: think about being as obvious as the OxyClean or ShamWow guys hawking their wares. You want whatever is important to “POP!” like the tagline on a late-night infomercial.

Hire Professionals—Amateur Hour Does Your Client No Favors, and Saving a Few Hundred Dollars is a False Economy

The author spent 18 years in the publishing industry. He’s personally conversant enough with several graphic and layout programs as to be able to, with a straight face, claim he can do book layout, create catalogs, or even illustrate the average math book or business text. But he’s also smart enough to know that does not, in any way, shape, or form, make him a graphic artist. The difference between your author’s best efforts and those of a professional is the same as the difference between a bright pro se litigant’s efforts and your own abilities, as an educated, trained, and experienced attorney, at litigation … which is to say there is no comparison.

Don’t think that you and your expert (unless he or she is part of a larger organization with its own internal graphics department or unit) are an adequate substitute for a professional graphic artist. Assuming there’s serious money at stake — and if there wasn’t, you wouldn’t be hiring an expert in the first place, would you? — it’s worth the investment to hire a professional to create your demonstrative evidence. Layout, presentation, emphasis … the pro will know how to make these and other elements work for your case in a way that you, or a subject matter expert, simply won’t. Think about the difference between a slick pharma, perfume, or major insurance company ad, and the ads aired on local cable TV by your nearby used-car dealer — that’s the sort of qualitative difference we’re talking about.

Summary—Demonstrative Evidence is Often What Separates the Amateurs from The Professionals

Anyone can talk to another person — e.g.. take direct testimony of an expert — and get the basic point across. But can you sell that point (and let’s be honest: litigation is selling your client’s point of view)? Pros can sell; amateurs don’t.

 

Utilizing Handwriting Experts: They’re Only as Good as the Samples You Provide

A forensic document examiner is better known as a handwriting expert. They come into play when one person says that another person signed some document — a contract, a lease, a will, a power of attorney, a promissory note, etc. — but the second person, or his or her representative, denies that he or she did. At that point, it may be necessary to have an expert examine the purported, or claimed, signature, to see if it is — or is not — that person’s signature.

How do they do this? They compare the purported signature to known or uncontested examples of that person’s signature, to see whether, and to what extent, they match. That means that the samples, known as “exemplars,” provided to the expert are critical: as in the old computer-related acronym GIGO, or “garbage in, garbage out,” poor or inadequate samples will result in a weak, erroneous, or easily neutralized (by the other side) expert opinion.

What Do Experts Look for When Analyzing a Signature?

First, a quick primer on what forensic document examiners look for when comparing signatures. Obviously, they look at the shape of the letters — does the “A” in the purported or questioned signature match the “A” in the known exemplars of that person’s signature, for example. But that’s only the start of the analysis: they also look at (among other things) —

  • The slant of the signature: does it slant right or left, upward or downward?
  • The weight or thickness of the lines
  • Whether it rests on, above, or below the signature line, and how far below the line any extensions of letters (like the lower part of a “p” or “g”) go
  • Do the loops or curls appear to have been drawn counterclockwise or clockwise?
  • Where are the starts and stops in the signature?
  • How “fluid” is the signature, and does it appear to have been drawn in one smooth move, like a well-practiced signature would be, or does it look like there were hesitations, as if someone were trying to copy something they are unfamiliar with?
  • The handedness — was it evidently made by a righty or lefty?

There are many elements to the analysis, and two signatures can look superficially the same but yet show significant inconsistencies on deeper examination. That’s why good exemplars are critical: you need samples that will let the expert do a deep, detailed analysis of multiple elements of the signature.

People Don’t Sign Things the Same Way Every Time

Complicating the handwriting expert’s job is that people do not sign things the same way every time. To begin with, people sign differently depending on how “formal” or “informal” the document is. We take more care on “weighty” documents that affect our rights than we do on documents carrying few or no consequences, and that means that we tend to take more time signing, and have a more legible signature, on formal (important) documents than on informal (less or unimportant ones). Think about signing an apartment lease or contract to buy a home or your will. Now contrast that with scrawling your signature on the receipt for take-out pizza or even the sign-in sheet in a courtroom and you’ll understand the difference. Is your signature the same in these different contexts? Almost certainly not.

Second, we tend to sign things we sign all the time differently than we sign one-off or uncommon documents. With things we sign all the time — cover letters; checks — we run on autopilot; with less-familiar documents, we often think about them more, and that thinking introduces a hesitation into, and therefore alters, our signature.

Third, the amount of space you have to sign will alter your signature: if you normally have an expansive signature but are now cramming it into a form’s small signature box, that will change letter forms and spacing.

Fourth, signatures change over time. Just as we are not static or unchanging — we learn, we grow, we change — so, too, does our signature change over time. Look at a document you signed 10 or 20 years ago and compare it to how you sign today — it’s virtually certain that even your inexpert eyes will see differences.

Fifth, the conditions under which we sign affects how we sign: when you’re in a rush, or tired, or had too much coffee or some wine, you will sign differently than on those occasions you are unhurried, unrested, and unaffected by what you’ve been drinking.

And sixth — we’re not robots. We simply do not do things the exact same way every time, even when we do something several times in quick succession under the same or similar circumstances. Take out your pen and sign your name five times; even though the five signatures should be very similar, they are not 100% identical. That’s because we’re human, not Siri or Alexa.

What Makes for a Good Exemplar?

Because signatures change over time, you want to provide your expert with exemplars that are as contemporaneous as possible with the signature being examined. If, for example, someone claims that your client signed a document 20 years ago giving that person a life estate in a home (which was the issue in the author’s most recent experience with forensic document examiners), then you want to provide your expert with signature samples from 20 years ago, or as close to that time frame as possible.

Because we sign formal and informal documents differently, if the questioned signature is on a formal document — something like a deed, a lease, a will, etc. — you want to provide samples of similarly formal documents. And conversely, if the questioned signature is on an informal document, be sure to provide informal exemplars.

Because we tend to sign document types we sign day-in and day-out differently than we sign unusual or uncommon documents, try to provide exemplars of the same, or at least similar, type(s) of document(s). And because the amount of space for signature affects how we sign, try to provide exemplars which have similarly sized signature lines or blocks.

Quantity Has a Quality All Its Own

Remember, our signatures are never identical, even when we sign two documents in close succession: there is always some natural variation. In a sense, none of us have “a” single signature; what we think of as our signature is really the current “average” of how we sign documents. Sometimes the letters of our signature will be slightly larger, sometimes slightly smaller; sometimes closer together, sometimes wider apart; sometimes more legible, sometimes less; etc. Any one sample of your signature will almost certainly not match 100% any other single sample. Therefore, you want to provide multiple samples, so that as the expert examines exemplar after exemplar, he or she can derive the common elements and compare those fundamentals of the person’s signature to the signature in question.

But Don’t Forget Quality

The expert needs to be able to see the signature’s elements clearly. Originals are better than copies, since there is no “blurring” due to the copying process and certain aspects (like, for example, the pressure used by the signor when signing) are more easily seen in originals. If you can’t provide an adequate number of originals, provide the best-quality copies you can — for example, “first generation” copies of originals, not copies of copies, since with each successive copying, detail and crispness is lost.

Summing It Up: What You Should Provide Your Expert as Exemplars

When trying to determine if person A did or not sign a certain document, provide as many samples as possible of how A signed similar documents (similar level of formality or import; similar type of document; similar space for his or her signature) at the same or a similar point in time as the document in contention. The more, the better: 60, 70, or more exemplars are not too many, because you want your expert to be able to confidently state that he or she has identified the fundamental elements of that person’s signature, explain them to the court, and state whether those same elements are (or are not) found in the questioned document.

A failure to provide enough, or relevant enough, or sufficiently high-quality exemplars will leave your expert vulnerable on cross examination. Opposing counsel who knows what they are doing will be able undercut your expert’s conclusions by showing that the exemplars are from sufficiently different types of documents or circumstances or time periods that they are not relevant; or perhaps they will show that there were insufficient exemplars as to draw firm conclusions; or that the exemplars are of such low quality that no fair comparison can be made.

No matter their academic qualifications or experience, a forensic document examiner’s opinion is only as good as the samples they have to work with — give them what they need to help your case.

Zoom Meeting

How to Conduct an Online Deposition of an Expert Witness

Social distancing makes cramming at least four (deposing attorney; other side’s attorney; expert witness; court reporter) and often more people into a conference room for hours on end inadvisable, even when it’s legal (i.e. when your state’s executive orders aren’t outright banning having so many unrelated persons in a room together). We don’t know how long this will go on, but smart money says that minimizing in-person contact will be with us for at least another year or more, until there’s a vaccine (knock wood). Under the current circumstances, much business — including legal business (up to and including hearings and trials) — is being conducted via Zoom or its videoconferencing equivalent. Even after a COVID-19 vaccine is widely available, there are good reasons why remote depositions will often make sense, such as minimizing travel time and therefore legal and expert expenses, or being better able to accommodate various parties’ disparate schedules, and opening up the universe of potential experts to ones who are not local.

For all these reasons, deposing experts by Zoom is becoming a must-have skill for attorneys’ toolboxes. Everything not affected by not having the participants in the same room remains the same: e.g. how to qualify experts, how to lay the foundation for their deposition, the questions to ask, the usual reservation of all objections other than as to form of question, etc. That said, there are significant adjustments you’ll have to make to the usual expert deposition “script.”

Most of the additional questions or instructions come from the fact that you have less control over a remote deposition than one conducted in-person — you only see what the laptop camera sees, and so the expert could have colleagues, confederates, representatives of the opposing party, or others right there in the room with him or her, or otherwise feeding the expert answers or suggestions on an iPad or tablet or via a separate (and invisible to you) window on the computer or the expert’s phone. If you want to imagine what the expert could be up to, think about your last Zoom meeting and whether you were watching anything else, doing any work, or talking to or corresponding with anyone else while you were in the meeting. Now multiply that by 10, since the expert and the party hiring him or her has a real incentive to cheat, not just boredom causing one to multitask or seek diversions.

Additional Instructions

For You:

  • Make sure all parties share all exhibits at least two business days in advance, so they can be pre-marked.
  • Make sure that everyone, including the deponent, has a full hard copy of all exhibits in advance.
  • Test the “meeting” and the recording of it ahead of time (and not just 10 minutes before showtime; test it days or a week ahead, to allow time to work the bugs out) — nothing is worse than conducting the greatest expert deposition of your career but then finding out that nothing recorded.

For the Court Reporter: Make sure that you confirm not only that the deposition will be recorded but that the video will only show the expert being deposed. As vain as you may be, you don’t need your face muddying the videographic record.

For the Expert: The following should be stated at the outset and agreed to by the expert and also repeated or reiterated as necessary; see the “Additional Questions” below, which indicate places where you might reiterate certain instructions.

  • “The device on which you are participating, whether computer or phone, should have no other windows or applications open or running while this deposition is ongoing, unless and only if I have specifically given you permission to use other software or another application and have identified the software or application you may use.”
  • “You should not have any other computers or telecommunication devices ‘on’ and with you. Please turn off any other devices or remove them from the room during this deposition unless you identify the devices to me and I give you permission to have them with you and ‘on’.”

(In some cases — e.g. an expert who’s also a parent and needs to be reachable by his/her offsite children or their caregiver — you’ll have to allow them to have a phone with them and on. But in that case, you can ask them to position the phone so it is the camera’s field of vision, so that you can see if they are using or checking it.)

  • “You should not have any chat boxes or ‘messenger’ apps open at this time and if you do, please close them.”
  • “You should not have anyone else in the room with you during this deposition other than the party hiring you or representatives of that party, or the attorney(ies) for the party hiring you. If there is any other person or persons in the room with you, even family members, please ask them to leave at this time.”
  • “If anyone else comes into the room during this deposition, you are to notify me at once.”
  • “If you are using a laptop, tablet, or phone for this deposition, please pick it up and pan it around the room, so I can see the entirety of the room.”
  • “Please adjust the camera on the device you are using so that I can see your entire upper body, including your hands.”

Further Questions

Before you launch into anything substantive, you have to get the following questions in to protect the integrity of the process — feel free to change the exact wording to better capture your own style. Where there is something that you have to “fill in” so it’s accurate for your deposition — like the name of the software or app being used — we’ll put it in square brackets in italics.

  • “I want to confirm that we are engaged in a deposition and that we are doing so remotely; is that correct?”
  • “I also want to confirm that we are taking your deposition remotely due to [insert reason; e.g. COVID-19 and social distancing]; is that correct?”
  • “Are you aware that the parties have agreed to take your deposition remotely via [name of software or app being used]?”
  • “I want to confirm that we are using [name of software or app] to conduct your deposition; is that correct?”
  • “What kind of device are you using to participate in this deposition? Please identify it as precisely as possible.”
  • “Do you have any other windows or applications open, including but not limited to messenger apps or email?”
  • “If you have any other windows or applications open, what are they?”
  • (If they have any other windows or apps open, once they have identified them, reiterate the instruction to close them)
  • ‘Do you or anyone in the room with you have any other computer or telecommunication devices with you at this time? If so, please identify them to me.”
  • “If you have any other computers or telecommunications devices with you, are they currently ‘on’?”(If they have other devices, reiterate instructions to turn them off and/or remove them.)
  • “Has anyone asked you to have any messenger software or apps open during this deposition, and, if so, who?”
  • “Is any [insert name of software or app being used for the deposition; e.g. Zoom) ‘chatbox’ open? (Reiterate instructions to close all such software, apps, or chat boxes.)
  • “Where are you physically located? Please identify the state, county, municipality or unincorporated area, address, and the location or room within that address. Be as specific as possible.”
  • “Is anyone else physically in the room with you? If so, please identify them.”
  • “Will you immediately tell me if anyone enters or leaves the room?” (If there is anyone else in the room, reiterate instruction to have all other persons leave, unless the only other person(s) are the other party(ies) and/or the other party’s(ies’) attorney[s].)
  • “If I ask you a question, do you agree that you will not check your email, your texts, any messenger apps, any social media, or otherwise communicate with anyone — including counsel for the party hiring you or that lawyer’s client — to answer the question?”

Remember: the purpose of an expert deposition is only half exploratory — to learn what the expert knows, thinks, and will testify to. The other half is to create record which can use to pin the expert down or impeach him or her. If you don’t do that — if you don’t create a clear, unequivocal record  —you will have wasted your time and your client’s money.

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