We are likely all aware of the infamous Texas attorney who mistakenly used a cat filter during a virtual court appearance earlier this month.  Although this is an extremely comical story and certainly brings some levity to the current situation in our nation, this is also a prime example of the new wave of errors emerging alongside the new norm of virtual appearances and depositions.  The good news is, with some preparation, anyone can be successful at virtual appearances.  This article will detail tips on mastering the virtual deposition as either an attorney or a deponent.

Familiarize Yourself with the Technology

While most virtual depositions use Zoom, there are other similar platforms (i.e. Cisco WebEx) which may be used instead.  It is important to determine which platform will be utilized and familiarize yourself with this platform at least one day in advance of the deposition.  It is of utmost importance attorneys ensure they know how to upload documents to the program before attempting to discuss the document or mark the document as an exhibit during the deposition.[1]  For both attorneys and deponents, it is imperative to understand how to use the mute button and turn off the camera. This knowledge is necessary in order for attorneys to speak privately to their client while on breaks.[2]  Of course, a firm understanding of the technology as a whole will also help prevent presenting oneself as a cat.

Present Yourself Professionally

Virtual depositions are still depositions. Just like an in-person deposition, the virtual deposition video may still be shown, or the transcript read, at trial.  As such, although attorneys and deponents may be at a comfortable physical location such as their home during the virtual deposition, they should not allow themselves to be lulled into a false sense of security.  Both attorneys and deponents must be on guard as if they were presenting at an in-person deposition.

Further, although those working remotely have grown accustomed to the regular attire of sweatpants and sweatshirts, both attorneys and deponents must dress professionally for the virtual deposition as if they were participating in an in-person deposition.

Next, it is best to use one’s full name on the electronic platform.  Avoid nicknames, usernames, or any sort of humorous name.

Lastly, both attorneys and deponents must look into their camera during the deposition.  This is equivalent to looking directly at the other individual in the deposition.  Looking somewhere else during the deposition is the same as looking around the room during an in-person deposition.  This may work as a disservice to the credibility of the deponent’s testimony if the deposition video recording is displayed at trial.  Likewise, both attorneys and deponents must avoid looking at themselves on the electronic platform.

Choose Your Location Wisely

Even though many of us are working from home, which can be full of distractions, it is important to choose a location appropriate for a virtual deposition.  Both attorneys and deponents must choose a quiet spot with no distractions so they can give full focus to the deposition at hand.  The lighting should be on one’s face rather than back.  Back lighting tends to darken an individual so it will be difficult to see expressions or other facial details clearly, especially if the video recording is shown at trial.

Additionally, both attorneys and deponents should be mindful of what is visible from the location to the other virtual deposition participants.  For example, it is best not to have personal information or anything which might be offensive visible to other participants.  In order to prevent the sharing of any such information, it is a good idea to use a virtual background so the other participants cannot observe any details of the location.

Takeaway

In the era of virtual depositions, there are now many new mistakes attorneys and deponents can make, such as accidentally appearing as a cat.  This new reality should not cause too much concern, as attorneys and deponents can easily avoid these errors.  The key points detailed above—familiarizing yourself with the technology, presenting yourself professionally, and choosing your location wisely—will ensure your next virtual deposition runs smoothly in this new era.

[1] It is also helpful if the attorney provides the exhibits to the court reporter, opposing counsel, and deponent ahead of the deposition.

[2] Although the conversation will be muted, it is still best the attorney and client speak on a telephone in a different room to ensure privacy is maintained.

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