I recently had my first in-person deposition in nearly three years. Although I have participated in dozens of depositions since the COVID-19 pandemic began, they have all occurred virtually so that people could socially distance. I recently had an adversary insist that depositions in a case occur in person. Although I was hesitant at first to hold in-person depositions — they can sometimes be a bigger hassle than virtual depositions — there are some benefits to in-person depositions that can be difficult to replace with virtual depositions.
It is common during depositions for parties to show deponents documents and for everyone at the proceeding to refer to documents in their questioning. This can include pictures, contracts, and really anything that has already been produced during discovery. It can sometimes be difficult to show witnesses documents during virtual depositions. Sure, it is easy enough to throw a document on the screen during a virtual deposition and have people refer to it. However, there are typically issues associated with viewing the document during a virtual deposition. Sometimes the document needs to be blown up so that smaller text can be seen. Sometimes the person reading the document and the person who can scroll through the document are different and this can create issues.
At an in-person deposition, it is much easier to refer to documents. Attorneys can just print out the materials and make sure that the deponent, the lawyers, and the court reporter all have documents that shall be referenced during a deposition. Moreover, it might be easier for court reporters to mark exhibits that are physically presented to them at an in-person deposition than during a virtual deposition. Of course, not all depositions rely on documents, and some cases will mostly be testimony driven rather than document driven. Nevertheless, if attorneys need to refer to a multitude of documents during a deposition, it might make sense to schedule an in-person deposition.
Building Rapport With Counsel
One of the benefits of having depositions and court proceedings in person is that this makes it easier for counsel to build rapport with one another. It is important that lawyers develop trust and understanding among themselves over the life of a case. Counsel often need favors in order to obtain the best outcome for their clients, and rapport is very important to negotiating an amicable conclusion to a case. Since most cases end in a negotiated settlement without the involvement of court officers, this is a very important part of a lawyer’s job.
It is very difficult to build such rapport virtually. Sure, rapport can be built from phone conversations, Zoom conversations, and the like, but there is nothing quite like meeting someone in person. In addition, when lawyers meet each other in person, it is much easier to talk about things that might not be directly associated with what they are handling in a given moment. For instance, an in-person deposition can be the perfect situation to discuss issues that might arise later in a case or case resolution. These impromptu conversations can be critical to a case, and they are much easier to have during in person depositions.
I have heard some horror stories of craziness that is easier to occur at virtual depositions than during in-person depositions. For instance, I have a friend who handles a mass torts matters. In a specific mass tort, it is very important that deponents mention the name of companies and their products that they believe they handled during the course of their careers. Often, merely mentioning these companies is enough to secure liability for these companies in the case. I have heard anecdotally that in some virtual depositions, it seemed obvious that the deponent was reading the names of companies of a list that was in front of the deponent. During an in-person deposition, it would be easy to see what the deponent was referring to at the examination, but during virtual depositions, this is much harder to do. Moreover, impermissible coaching and the like is much easier during virtual depositions when a lawyer is off screen and can make suggestions to their client. In-person depositions can keep everyone honest and make it much more difficult for counsel and clients to commit some kind of hanky-panky during a deposition.
All told, it is going to be difficult for lawyers and clients to give up the ease and convenience of virtual depositions for in-person examinations. However, in many instances, in-person depositions can have a multitude of benefits.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at email@example.com.