It’s been nearly a year since I wrote about litigation in the middle of COVID-19 , and I think it’s fair to say 2021 has been quite the busy year so far. Most litigation forecasts predicted this year would see a huge uptick in litigation – stemming from new circumstances created by COVID, as well as the return of litigants who took a pause in 2020 – and I think they’re absolutely right. While some courts are still struggling to clear last year’s backlog of hearings and trials, we’re seeing that a majority of the courts have actually done a surprisingly wonderful job of keeping up and are even planning to resume in-person civil trials in August and September. And with trial dates and related deadlines back on the calendar, discovery has necessarily resumed in full swing as well.
Depositions are arguably the most vital component of the discovery process, as written discovery (interrogatories, requests for production of documents, requests for admission) are finalized, if not almost entirely prepared, by attorneys. Pre-COVID, remote/video depositions were pretty rare – reserved only for those witnesses who really couldn’t travel or to relieve some other kind of extraneous burden. In 2020 and Q1 of 2021, all depositions were held remotely, for obvious reasons. Now, I think we’ve entered a new transition period where depositions certainly could be taken live (especially given the advances in technology the legal industry has had to implement), but attorneys and witnesses still may not want to (especially if not fully vaccinated, required to board a flight, etc.). What’s the right call here?
Of course the answer is, it depends. But here are some considerations I walk through with my clients:
Advantages of live depositions:
1. As I mentioned above, depositions are innately more useful because they require answers in real time, without assistance from counsel. Even if done remotely, live questioning is not 100% the same as when you’re sitting face to face.
2. Depositions are a way to see how a witness might shape up at trial. Body language and overall demeanor is much more easily observable in person, and witnesses are just not going to act the same in their home/personal office than in a more formal setting. I think this is actually a really important consideration because juries are unpredictable (maybe another post on that later), and data shows that character biases or impressions made early on are really hard for jurors to shake.
3. If you anticipate needing to show the witness a lot of documents, that’s usually much easier to do in person. I attended a deposition last year that involved reviewing 30+ exhibits, and each time the witness had to review something, it took nearly ten minutes just to make sure everyone was looking at the same thing.
1. The technology is pretty satisfactory (I rarely ran into issues over the last year), and even if not 100% the same, you’re still engaged in a question and answer session in real time. Videoconferencing technology also includes the ability to record the deposition via audio or video, and that is also empirically shown to have a huge impact in jury trials.
2. Obviously, live depositions are costly in terms of out-of-pocket expense and also attorney time (travel to and from the location, etc.). Court reporters will sometimes for use of their conference rooms, or to use visual displays, etc.
Every case and witness is different, so there are likely other considerations to think of as well. I think the rest of 2021 will still involve plenty of video depositions, and overall, it’s nice to know it’s more of an accepted option when appropriate.