Exploring Different Types of Depositions and Remote vs. In-Person Considerations

Depositions are a critical component of the legal process, allowing for the collection of sworn testimony outside of the courtroom. These testimonies are integral to building a case, as they provide insight into what a witness will say during trial and can be used to challenge their credibility if their testimony changes. A live in-person deposition involves face-to-face questioning, while a video deposition records testimony via videoconference or electronic means.

Depositions can be conducted in various formats: oral, written, video, and telephonic. Each method has unique procedures, advantages, and specific use scenarios. Understanding these deposition formats is crucial, especially when considering the choice between a live in-person deposition vs video deposition in navigating discovery limitations in California.

The COVID-19 pandemic has further influenced the deposition landscape, leading to a significant rise in remote and hybrid depositions. This guide combines insights on different deposition types and considerations for choosing between remote and in-person formats.

Types of Depositions

Oral Depositions

Oral depositions are the traditional and most commonly used method. They involve the witness, also known as the deponent, attending a deposition proceeding to be questioned by counsel. This questioning is led by an opposing attorney, requires sworn testimony, and is regulated by civil procedure and federal rules. Consistent with Federal Rule of Civil Procedure 30, Depositions by Oral Examination, these proceedings can be conducted in person, remotely via videoconference, or in a hybrid format where some participants are in person and others are remote.

The process of an oral deposition includes:

• Notification: The deposing attorney must notify the deponent and their counsel of the deposition.
• Opening: The deposition officially opens with the swearing-in of the witness by a court reporter or similar official.
• Questioning: The deposing attorney conducts the questioning, which is recorded verbatim by the court reporter.
• Closing: The court reporter officially closes the deposition, and a transcript is filed with the court and distributed to relevant parties.

Oral depositions are preferred by many experienced attorneys because they allow for face-to-face interaction, making it easier to assess the witness’s demeanor and credibility. However, the convenience and cost-effectiveness of remote depositions have led to a growing preference for videoconferencing options.

Written Depositions

Written depositions involve attorneys from both sides of a case presenting their direct and cross-examination questions in writing. The witness typically sees these questions in advance and has time to prepare their answers. The process includes several steps:

• Notification: The deposing attorney notifies the deponent and their counsel of the deposition.
• Submission of Questions: The deposing attorney files the written questions with a court reporter, notary public, or clerk.
• Cross-Examination: The opposing counsel reviews the questions and submits cross-examination questions.
• Deposition: The court reporter meets with the deponent and asks the written questions, recording the responses.
• Transcript: The transcript of the session becomes the official record.

Written depositions were more common before the advent of videoconferencing and teleconferences. They are less common today but still useful in specific scenarios, such as when the witness is an expert on a narrow subject, has limited testimony, or is unavailable due to medical conditions or incarceration.

Video Depositions

Video depositions add an audiovisual element to oral testimonies. These recordings are taken either live or via videoconference and must be paired with an official written transcript to be part of the official record. Video depositions are particularly useful for:

• Impeaching Credibility: They can be used to impeach a witness who contradicts their prior testimony.
• Emotional Impact: They can reinforce emotional pleas or arguments related to the impact of a complaint.
• Substitute Testimony: They can act as a substitute in court for a witness who cannot be present.

Preparing for a video deposition involves ensuring the witness understands the importance of their demeanor and appearance, as nerves or discomfort can be misinterpreted. It is crucial to test the technology beforehand to ensure a smooth process.

Telephonic Depositions

Telephonic depositions, involving audio-only recordings, are less common now due to the availability of videoconferencing. They are typically conducted via teleconference platforms that allow multiple parties to join. Although less frequently used, telephonic depositions can be appropriate in situations where video is impractical.

Remote vs. In-Person Depositions

The COVID-19 pandemic has significantly impacted the legal world, leading to a rise in remote depositions. While some depositions have returned to in-person formats, many remain remote. Each approach offers distinct advantages and considerations.

Advantages of Remote Depositions

1. Cost and Time Efficiency: Remote depositions eliminate travel costs and allow attorneys to conduct more depositions in a shorter time. For example, Susman Godfrey trial lawyer Andres C. Healy’s team conducted 15 virtual depositions in three weeks, reducing costs by up to one-third.
2. Speeding Up Discovery: Remote depositions reduce scheduling conflicts, accelerating the discovery process.
3. Accessibility: They protect medically vulnerable participants and accommodate witnesses in distant locations.
4. Court Reporter Availability: The shortage of court reporters in the United States makes remote depositions advantageous, as court reporters can handle more depositions remotely.

Advantages of In-Person Depositions

1. Critical Cases: In-person depositions are essential for critical witnesses in high-stakes cases to ensure no witness coaching occurs.
2. Rapport and Credibility: It is easier to build rapport and assess credibility in person.
3. Technical Reliability: In-person depositions avoid issues with technology and internet connectivity.
4. Interpreter Needs: In-person depositions are preferable for witnesses requiring interpreters and for lengthy depositions, as sitting for long hours on a videoconference can be exhausting.

Preparing for Different Types of Depositions

Preparation is crucial for any deposition format. Witnesses should present themselves professionally, avoid emotional extremes, and ensure a conducive environment for the deposition. Specific preparation steps include:

Appearance: Witnesses should err on the conservative side in terms of dress, accessories, and cosmetics. A professional appearance can enhance a witness’s credibility across all deposition types, particularly for video depositions where the witness’s appearance may be viewed by a judge and jury.

Neutrality: Witnesses should remain neutral, avoiding overly reactive or dramatic responses. An appropriate level of emotion can be critical for effective testimony, but becoming overly reactive or dramatic undercuts believability.

Environment: A confidential, quiet environment is essential, free from background noise or interruptions. Witnesses should set aside time for the deposition without the responsibility or presence of children, pets, or other adults.

Technology: Testing hardware and software beforehand ensures smooth proceedings, especially for remote depositions. For video depositions, a test run to check lighting and audio settings is essential to ensure clear communication and minimize ambient noise.

Conclusion

The legal landscape’s shift towards remote depositions is likely to persist due to cost, convenience, and technological advancements. Attorneys must evaluate the specific needs of each case and witness to determine the most effective deposition format. Whether opting for in-person or remote, thorough preparation and leveraging the right technology are crucial for successful outcomes.

Remote depositions offer significant advantages in terms of cost savings, efficiency, and accessibility, making them a valuable option in many cases. However, in-person depositions remain irreplaceable for critical witnesses, building rapport, and ensuring the reliability of testimony. By understanding the benefits and limitations of each format and preparing accordingly, attorneys can effectively navigate the evolving deposition landscape and achieve the best possible results for their clients.