Depositions are a critical component of the discovery phase of most litigation, including probate litigation, for two reasons. First, a lawyer never wants to ask a question at trial to which the lawyer does not already know the answer – too risky! To mitigate that risk, we will depose many or all of the other side’s witnesses before trial, inviting them to our offices to be questioned under oath, with the questions and answers recorded in a written transcript prepared by a court reporter. Second, it is helpful for the lawyers to see how each witness “performs” at deposition, both as to the actual answers given and as to the overall demeanor and credibility of the witness, in order to better assess the risk of going to trial. Settlement discussions often take place during or shortly after the deposition phase.
Gone for now are the days where we can invite all parties, their respective counsel, the witness, and a court reporter into our offices. For the most part, we are currently not able to sit directly across a table to confront a party with evidence of undue influence, or to cross-examine a medical expert regarding her opinion on testamentary capacity, or to ask an elder protective services worker to review and expand on the observations recorded in his case notes. But that does not mean we’re not conducting depositions at all. As with so many other aspects of life these days, depositions are being conducted remotely, with various court reporting agencies offering training and support to ensure that everything runs as smoothly as possible. Some are using specialized software to assist with the uploading and sharing of exhibits. Precautions are being taken to ensure that the deposition rooms remain secure, and most importantly that any “breakout discussions” – including a witness or party and his counsel – are private and confidential. *Pro-tip* – Don’t chance it. If you need to speak to your attorney during a deposition, ask for a break, turn off your video and mute your microphone, go in another room, and call her from your cell phone.
Is it perfect? Certainly not. There is something about being face to face with a witness to ask questions, receive answers, and judge credibility, that cannot be duplicated online. It is also helpful, and reassuring, for a witness to have his counsel physically present during a deposition. It’s pretty hard to kick your client under the table to get them to stop talking if you’re not sitting at the same table. On the other hand, you can wear sweatpants and no one will know, and there are always plenty of snacks on hand.
As the world slowly re-opens to in-person business, we are considering some hybrid methods of resuming in-person deposition practice. I have seen at least one court reporting agency set up its conference room with plastic dividers separating each of the attendees. We have also discussed limiting the number of people attending in-person, so that only the witness, his or her attorney, the attorney conducting the deposition, and the court reporter would be in the room, with other parties and counsel permitted to attend remotely. This will all surely continue to evolve, and we will be sure to keep you posted.
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