Yesterday I did my first remote video deposition via Zoom. It went well.
As the workers’ comp community looks at lockdowns and social distancing that may extend for months, workarounds and practical solutions are of great interest. At the moment, most workers’ comp attorneys are not meeting in person with clients or having the clients come to their offices, so routine deposition taking is generally not happening.
Remote video depositions may be an alternative. I’ll share some reflections on the Zoom video deposition process.
First, the mechanics. After the defense attorney indicated interest in proceeding with the deposition, my office contacted the client to inquire whether the client has a computer or smartphone with a camera and whether the client has working wi-fi or network access.
Some clients have a smartphone but not an adequate wi-fi setup. And yes, there is a digital divide. Some clients have neither the hardware or wi-fi/network access. As people lose their jobs in this crisis, some may lose digital access.
Once we confirmed the client had the hardware and network to participate, we asked the defense attorney to have their court reporting firm set up a Zoom conference.
Meanwhile, the day before the deposition I called the client and did a one hour extensive prep, discussing deposition procedures and tips as well as reviewing factual issues in the case. That phone prep is billable as attorney time under Labor Code 5710.
Among other things, I satisfied myself that the client understood that although the deposition was being taken remotely, it has the same force and effect as if we were all in the same room together. Also, I explained the importance of waiting for the question to be finished before starting an answer. This is always important, but particularly on Zoom where a court reporter is taking the testimony.
I also asked the client whether they would be signing on from a quiet space that is free from interruptions. In this case the applicant had a quiet room where he could sit. In the real world, many people are stuck at home, sharing spaces with young and old family members, kids out of school, etc etc. There may be no quiet space for the deposition, which could be a deal-breaker.
As it turned out, the defense attorney was the one with some distraction, as she was taking the deposition from her home, where a young child burst in on one occasion.
Before starting, we stipulated on the record that if I wished to confer with the client we could either pause the deposition so that I could call the client, or that we could sign off of Zoom and resume in a few minutes. My experience is that if wi-fi/network connection is unstable, Zoom may periodically “freeze up”. Counsel agreed that if the Zoom software froze up, counsel would use the Zoom messaging tools to indicate that a pause was needed. Everyone exchanged cell phone numbers in the event of difficulties.
In this particular case there were not any documents that the defense counsel sought to show to the applicant for comment. If there are documents which defendant wishes to show to applicant, defendant would probably be advised to e-mail them to applicant counsel beforehand so that they can be provided to the applicant for review. Simple documents might be held up in front of a camera, but if they are complicated or numerous, that may not fly with the Zoom setup.
We experienced no problems during the Zoom deposition.
Remote video depositions have been viewed with skepticism by some, including some colleagues in my office. Generally, however, it is in the interest of the parties to do these in order to keep cases moving during this COVID emergency.
Certainly there are situations where doing this may be either more difficult or inappropriate. Cases requiring interpreters may be a challenge, though they are probably doable. If the client has hearing or sight difficulties, a high level of anxiety or other emotional difficulties, or is very tech-unsavvy, the format may not work well. If there is a high degree of animosity between the applicant and the employer, a client may want to have a lawyer physically present at his/her side.
But remote video depos are worth consideration as we move through the greatest period of system instability I have seen in my multi-decade career in workers comp.