What to expect in a virtual hearing/deposition

As the country adjusts to its new socially-distanced lifestyle, virtual hearing have become the “new normal” rather than the exception.

Offices have shifted to work-from-home environments and classrooms all over the nation have adopted creative digital learning tools to stay on track.

In the legal world, virtual hearing and other digital conversations often provided opportunities to connect with clients and other counsel worldwide in real-time. Due to the uncertain times ahead, incorporating a virtual conference platform into legal proceedings is slowly but surely becoming an industry standard. There are some important things to prepare for during this shift that can make the transition a bit easier.

Preparation

In previous situations, counsel and witnesses alike were able to provide each other the necessary documentation for a deposition during an in-person meeting. During the COVID-19 pandemic, things like these routine exchanges and “reading the room” are challenges. Various factors like connectivity issues and technological troubleshooting can also interrupt the flow of an already arduous process.

Counsel, clients and witnesses need to be as well versed in their technical capabilities as possible before an actual hearing or deposition. Until court-initiated policies surrounding software practices are established, it is important that all parties agree on using a single platform that is both acceptable and accessible for the needs of everyone involved. In some specific instances, certain platforms may offer additional features for sharing screens to enable exhibit sharing.

Consulting with your counsel in preparation for the deposition should involve discussions on how to operate and navigate the agreed-upon platform.

Clarity of presentation

Once the communication platform has been agreed upon, there are some additional steps witnesses may take to ensure that they are being seen and heard clearly. To ensure optimal visibility, be sure to consider the following:

• Good Lighting – the ambient light from your computer or mobile device is sadly inefficient to successfully light your face. Make sure you’re not only in a well-lit room, but be sure to have an additional light source on your face, so that your expressions are easily readable.
• Ear buds and/or Headphones with a microphone – sometimes computer speakers can cause an audio delay in a virtual setting, so having a controlled input and output for the deposition will make your testimony easier to hear.
• Background – while your private art collection may have taken years to cultivate, a plain, solid-colored backdrop is preferable, as it reduces the amount of distractions during testimony.
• Camera angle – witnesses and counsel alike should be clearly depicted from the top of their heads to their elbows. This may mean propping your computer or device on a stack of books to ensure that everyone involved in the hearing has a better view of your face than just the underside of your chin. You may also need to figure out how close or how far away from your device you’ll need to sit to frame yourself properly.
• Dress To Impress – similar to pre-COVID times, appearing for virtual legal proceedings like virtual hearing and depositions require parties be dressed appropriately. While the camera will capture your outfit from the elbows up, a blazer and a tie can still set right tone.

Following these protocols can remove unnecessary distractions from the conversations to come, and lessen the chance of potential obstacles that can be encountered during remote communication.

Challenges of maintaining integrity in a virtual environment

While the shift to a digital communication platform has its challenges, the general expectations of counsel and their responsibilities have not changed. Attorneys are still expected to establish a clear and concise record of the events in question, regardless of how this information is ultimately shared with court personnel.

Previously, counsel and presiding officials had a relatively easy time ensuring the integrity of a witness response. Witness coaching by opposing counsel was easily recognizable, for example. In the virtual realm, there is some difficulty in assuring whether or not witness testimony has been influenced by third parties. To be thorough, an attorney taking a deposition should confirm on record that the witness is, in fact, alone and unable to receive outside guidance from any other parties during their testimony.

Additional chat or messaging features between attorneys and the witness may be monitored to prevent additional coaching. Attention to these steps can and will ensure conformity with well-established procedures for depositions. While these extra steps may seem a bit superfluous, the monitoring of information exchanged between counsel and witness can lessen the already complicated workload of court reporters and record keepers.

Another notable challenge is witnesses being able to know when attorneys mean to offer an objection during their testimony. The delays that can occur in conference platforms can add to this challenge as well, so the need to develop a relationship between attorney and witness has become increasingly more important.

Looking forward

While states across the country slowly relax their shelter-in-place regulations, it is still uncertain when we can expect normal judicial activities to resume in the courthouse. Many courthouses have already opened their doors, but there may be folks who are immune-compromised that remain incapable of attending in person. As these proceedings become more reliant on virtual means of communication, it is becoming increasingly more likely that virtual hearing, depositions and trials will begin to follow suit.

Attorneys may also be expected to solve certain pre-trial needs, now that distance can be eliminated as an obstacle. Counsel and/or witnesses with physical disabilities or chronic illnesses now have the ability to eliminate travel and other logistical issues, and participate in a deposition and other legal activities. Also, clients can avoid expenses and complications, such as travel costs and securing time off from their employers. Virtual hearing and depositions have the potential to become a standard option during the legal process.