Since the beginning of the pandemic, more and more litigators are employing web conference depositions to secure testimony and keep their cases moving. To that end, CompuScripts has offered training to attorneys and paralegals on subjects such as practical tips for remote depositions and working with exhibits remotely. The preparation of a witness for a web conference deposition, however, has several unique aspects. This month, we’d like to offer tips on preparing a witness for a web conference deposition via Zoom or other online platform.
A CompuScripts blog from the spring of 2020 advised clients on the proper device to use during a web conference deposition. First, the device your witness will use must have a camera, microphone, and speaker. Next, your witness should use a desktop or laptop computer for the best results. A tablet is the next best device for your witness to use. And a mobile phone should be the device of last resort, as the screen size makes it difficult for the witness to view exhibits. Finally, it is imperative that the witness’s device and connection are tested the day before the deposition is scheduled.
One of the most important aspects of the web conference deposition is also the most basic. The witness must appear from a location with the best internet connection available. In general, a wired Ethernet connection is best as it provides the most stable connection to the internet. A Wi-Fi connection is the next best choice. A cellular connection should be a last resort as it is the least stable. Of course, when 5G becomes widely available, connection protocol could change.
For specifics, Lynette Mueller, chair of the National Court Reporters Association’s Technology Committee, reminds deposition participants of Zoom’s minimum bandwidth requirements:
It is also important to have the witness test his or her bandwidth at the location from which he or she will appear. If insufficient, the attorney should secure an alternate appearance location for the witness with reliable connectivity, bandwidth, and internet speed.
Counsel should instruct the witness to turn off all other devices using internet bandwidth or Wi-Fi during the deposition. The witness should also disable all Bluetooth devices and close programs on the device not being used for the deposition. Remember, the web conference deposition is only as good as the weakest connection.
Regardless of the device used by the witness, it is important that the device is properly placed. Wirecutter blogger Kevin Purdy recommends placing the device slightly above eye level. “Assuming you have your monitor set up ergonomically,” he says, “with your gaze falling about 2 inches below the top edge of the screen, this means you’ll be looking straight ahead at people on the call, which feels more like an in-person meeting.” If your witness is using a laptop, the use of an external web HD camera will yield better results. It also allows for optimum placement of both the viewing screen and the camera.
Lastly, the deposition witness should resist the urge to hold the device during the web conference deposition. Media production company Zoom Imageworks warns that if hand-held, the device stability won’t be possible for long. Their advice? Have the witness use a stand designed for the particular device to keep it steady. If that’s not possible, have the witness rest the device on or against a stack of books or even a kitchen container.
While it may seem counterintuitive, the witness should refrain from the use of a virtual background. This includes the use of a solid blue or green screen. If the witness moves, a virtual background may cause his or her image to pixelate or even disappear entirely. And according to CompuScripts president Deborah Dusseljee, when using a virtual background, any document held up to the camera, such as a driver’s license for witness identification by the notary, is hidden and not viewable.
Therefore, an attorney should remind the witness to choose an appropriate physical position for the virtual deposition. First, the witness should not appear while reclining on a bed or a sofa. Next, the witness should not appear from a workplace breakroom, expecting a speedy end to the deposition. Finally, the witness should NEVER appear while driving. Instead, instruct the witness to appear from a location with a neutral background, such as a desk or chair positioned in front of a neutral wall. A web conference deposition is a formal legal proceeding and should appear as such.
Lighting can help witnesses look their best during a web conference deposition. Becca Farsace, video director at The Verge, warns participants against having the light source behind them during video calls. “I recommend having your largest light source either right in front of you or no more than 45 degrees away from directly in front of you,” she says. This prevents shadowing on the witness’s face. Farsace also recommends adjusting the device’s screen brightness, based on the brightness of the room. “A bright screen can blow the highlights on your face out,” she says, “making you look more like Casper the Ghost.”
According to attorney Debra Bogaards, witness credibility is a product of testimony and physical appearance. So if you want your witness to be taken seriously, remind him or her to look the part. In her article titled “Dressing Your Client for Success at Deposition and Trial,” Bogaards discusses witness dress. “Tell your plaintiff to dress appropriately for his or her profession. Lawyers, doctors, engineers, and teachers should wear a suit. Stay-at-home parents who are not professionals can wear slacks and a sport coat or button-down shirt with a V-neck sweater. The object is to look professional. Neutral. Appropriate.”
Of course, Zoom meetings are typically only from the waist up… until they aren’t. The appropriate dress of the upper body only may make for an embarrassing moment if there’s a need to get up to reach for a document.
CompuScripts Court Reporters and Legal Videographers has been regularly scheduling videoconference and remote depositions for more than a decade. If you or your witness have questions about the unique aspects of a web conference deposition, contact us for assistance!