Will Lawyers Continue to Depose Experts Remotely After the Pandemic Ends?

Written on Monday, March 22nd, 2021 by T.C. Kelly
Filed under: ExpertWitness, In the News, Working with Experts

Zoom has become a way of life for businesses that conduct interviews or meetings during the pandemic. Courts have used Zoom to conduct hearings remotely to avoid unnecessary gatherings that might spread the virus. Lawyers have relied on technology to take depositions without bringing lawyers, clients, witnesses, and court reporters together in the same conference room.

Rule 30(b)(4) of the Federal Rules of Civil Procedure allows depositions to be taken remotely by stipulation or by court order. As a judge in the Southern District of New York observed, remote depositions have become “the new normal.” The judge concluded that a remote deposition in a “document intensive” case would not be prejudicial because documents can be shared in advance.

The judge also noted that widely available video technology permits documents to be viewed by all parties to a deposition. While sophisticated technology may be more difficult to master than Zoom, a judge in the Southern District of California rejected the notion that lawyers are incapable of learning anything new. The judge wrote: “There are numerous resources and training opportunities available throughout the legal community to assist Sodexo’s counsel in the operation and utilization of the new technology.” Even lawyers who are set in their ways can be expected to learn new tricks — or to ask their paralegals for help.

Advantages of Remote Expert Witness Depositions

Conducting an expert witness deposition remotely has advantages that extend beyond protection from a contagious disease. Experts are more likely than fact witnesses to live some distance from the place where the lawsuit was filed. Plaintiffs sometimes find that the most suitable expert for a case lives in a different state. Defendants sometimes hire expert witnesses who live on the other side of the country to drive up the cost of litigation as a tactic to encourage settlement for less than a claim’s full value.

Taking depositions remotely is thus a cost saving tool. Deposing an expert who lives far away forces lawyers to travel or to pay the expert’s travel expenses. Depositions can also be scheduled more easily if lawyers and witnesses don’t need to consider travel time when they look for availability on crowded schedules. Witnesses and lawyers may also perform more capably if they haven’t been exhausted by travel.

Clients might choose not to expend the funds or time to attend the deposition of a distant expert witness. If the deposition is taken remotely, the client can watch the deposition in the lawyer’s office and may be able to share informative notes with the lawyer as the expert testifies. Remote depositions therefore have value in keeping clients engaged in the litigation.

Disadvantages of Remote Expert Depositions

Remote depositions are always subject to technical glitches caused by slow connections or unfamiliarity with software. As lawyers have become more familiar with the technology, those glitches have become a less frequent annoyance.

A larger problem with remote depositions is the limited scope of images captured by cameras. An expert isn’t supposed to look at documents unless the questioner asks the expert to do so, but it is difficult to be sure that the expert isn’t consulting notes if the expert isn’t testifying in person.

Reading body language is difficult when a camera is focused on the expert’s face. While the camera should capture facial expressions, more subtle nonverbal clues — including sweating when questions become uncomfortable — may not be readily apparent.

The Future of Remote Expert Depositions

As the pandemic winds down, will remote depositions of experts become less frequent? Lawyers have mixed feelings about remote depositions. Attorneys who hire distant experts solely to increase the burden of litigation may want to resume in-person depositions as soon as they can. Lawyers with deep-pocket clients who enjoy traveling (and billing for travel time) may also encourage a return to in-person depositions.

Lawyers who are advancing the cost of depositions, hoping to be repaid from settlement or verdict proceeds, will likely advocate for the continued use of remote depositions. Lawyers who have been placed on a tight budget by clients may also want to reduce expenses by deposing experts remotely.

When lawyers disagree about taking depositions remotely, the federal rules and most state rules allow the judge to order that the deposition be taken remotely. Judges who might once have accepted the argument that video depositions are a poor substitute for live depositions might now decide, based on their own experience in conducting court hearings over Zoom, that questioning a witness remotely isn’t significantly different from questioning the witness in person.

In the end, lawyers will need to weigh the advantages and disadvantages of remote expert depositions in each case. The experience that lawyers and judges have gained during the pandemic, however, make it likely that distant experts will routinely be deposed by video.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.