Briefer Sessions and Smaller Binders: Why Remote Witness Preparation May be Here to Stay

More than a year into the Covid-19 pandemic, lawyers have become pretty comfortable taking and defending virtual depositions, including preparing a witness remotely. Even though remote depositions will become less frequent as the pandemic subsides, remote witness prep may remain commonplace. Here are a few things we’ve learned over the last year that are worth considering even when preparing for in-person depositions.

Remote preparation for early sessions.  Virtual prep can be a powerful complement to final, in-person sessions leading up to the deposition. Without having to travel, you can start meeting with your witness earlier than you might have otherwise. You can start the important work of getting to know your witness and building rapport. And you can lay the foundation for the rest of prep: the preliminaries of deposition technique, discussions of themes, and first run throughs of the witness’s story. With a lot of that groundwork already covered, you can spend more time on the key issues during the final stretch of prep before the deposition.      

Shorter, but more frequent, sessions.  As we’ve all learned by working from home over the last year, video conferences can be draining. And it is easy to get distracted looking at other things on your computer and on your phone. As a result, remote prep sessions tend to be shorter and more focused than all-day, in-person prep sessions. You can use this shorter remote format to your advantage, building individual sessions around key issues or themes. More frequent sessions also provide opportunities for adjustment to your preparation plan based on what you learn during the earlier sessions while also providing a sense of momentum and growing confidence for the witness.  

Getting more lawyers involved.  It is much easier for a colleague to join a Zoom session than to travel for an in-person meeting with the witness. Early remote prep sessions are a great opportunity to expose the witness to different cross-examination styles and to get feedback from different lawyers. It is also an opportunity to get junior lawyers more involved in prep, either by leading individual sessions or doing mock cross-examinations, when cost considerations would otherwise prevent their participation in an in-person prep session before the deposition.  

Smaller binders.  It is probably asking too much to hope that large deposition prep binders go by the wayside. But remote witness prep showed us that most of the time documents can be shown on the computer screen and things will be fine. While there is still a benefit to putting together binders of key documents, other documents that might only be used briefly during prep can be shown on the screen without adding to an already hefty binder. 

Video feedback. One advantage of remote video sessions is the witnesses’ ability to see in real time how they appear when answering questions. Yes, you can videotape an in-person session. But in our experience, it is somewhat disruptive (and recording the session might raise discovery issues that you’ll want to consider in advance). On an unrecorded Zoom meeting, however, witnesses can observe their posture, gesticulations, verbal pacing, sideways-glances, water-drinking, and other body language statements that sometimes sway jurors as much as the witnesses’ testimony. 

In-person prep sessions have undeniable value and are irreplaceable in some circumstances. But a year of social distancing has taught us that remote deposition preparation has real advantages, and we expect to continue that practice at some level even as depositions themselves move back to the conference room.

• Virtual Depositions