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.
- 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.”
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.