The virtual, video-conferenced deposition has become, as much as many trial lawyers dislike it, a part of the “new normal.” It will likely continue so, at least as long as the judicial system is faced with the strictures of the COVID-19 viral pandemic, and perhaps well beyond. Whether the profession returns to the “old normal” once the pandemic is (hopefully) vanquished remains to be seen, but the general consensus seems to be that it won’t happen anytime soon.
In a two-part featured article series for DRI’s The Voice, product liability and mass torts partner Adrienne Busby, senior counsel Joe Price, Kevin Ong, Ph.D., P.E., principal engineer at Exponent, Inc., and Merrie Jo Pitera, Ph.D., CEO and director of jury research at Litigation Insights, highlight points of concern in the preparation and taking of a video deposition.
In “Tips on Virtual Expert Witness Deposition Testimony – Part 2,” the authors emphasize treating virtual depositions the same as live depositions, keeping the setting professional and the expert witness comfortable. In advance of the deposition, the authors explain the importance of knowing how everyone will be using and seeing their screens and noted questions to clarify with opposing counsel (e.g., Will exhibits be provided to the witness prior to the deposition?). During the deposition, the authors identify questions to ask the witness, ways the examiner may show an exhibit, and added other tips such as taking extra breaks and longer pauses before speaking.
Because some courts are now conducting or considering conducting virtual trials, these tips may also apply to live virtual trial testimony.
In part one of the series, the authors highlighted the role that cinematography (e.g., camera angle, lighting, eye contact) plays when capturing video testimony, and the impact it has on credibility. Read part one.