The first weeks of experimenting with virtual courtrooms brought a wave of blunders—including questionable attire, technical difficulties and participants joining from bed—into news headlines. The current situation is creating unprecedented territory for the legal system, and upending practices built upon the sturdy foundations of face-to-face questioning, hard copy exhibits, courtroom etiquette, and rules. Now, lawyers are adjusting to a wholly new way of getting their jobs done. It involves video meetings, presenting exhibits digitally, strategizing among a dispersed team working from home and deposing witnesses while children dance in the background.

Depositions have become particularly challenging. Normally a straightforward process that takes place in a law firm between a small group of participants (witness, stenographer, videographer, one to two lawyers), depositions are now taking place via video, in home settings among large groups of remote attendees. FTI Consulting’s experts are often involved as witnesses in litigation and investigations, and several of our consultants have begun giving testimony in virtual settings. Based on lessons learned from those experiences, this guide offers tips and tricks that will help the legal community begin to understand best practices for remote legal proceedings, and adapt to the new normal.

  • Keep it Professional: While working from home has turned into a pajama friendly affair for many, legal proceedings are serious matters and should continue to be treated as such. A professional appearance does make a difference in terms of how a witnesses’ testimony is received—especially if that witness has been brought into the case as a subject matter expert. Staging a clean, organized background with good lighting is strongly preferred over a virtual background, or worse, joining from bed. Participants should wear professional attire and set up in an area removed from busy parts of the home. While this may be particularly difficult for people with small apartments or a full household, it’s important to try and keep the environment as professional and distraction-free as possible.
  • Practice: In addition to staging a comfortable, professional setting, key deposition participants should do a few walkthroughs ahead of time. Make sure the camera, microphone (or headset) and video conferencing application are all working properly. Use a device that does not store files relating to the case, to avoid any discoverability snafus. Turn off notifications and any other functions that may be distracting or cloud the testimony.
  • Exhibits Require Extra Planning: In an in-person deposition, an attorney may hand a witness a document, then instruct him to turn to a certain page, read an excerpt and comment on the issue. Numerous exhibits may be introduced in this way throughout questioning. But when the interview is taking place remotely, exhibits become a bit trickier. In some instances, attorneys may use a tool enabled through the video conferencing platform to show a witness a document. They can share multiple exhibits via links that the witness can click on as instructed. This is far less efficient and impactful than when exhibits are introduced during an in-person proceeding. The extra back and forth, and clicking, scrolling, reading and toggling between numerous screen-shared documents creates a lot of overhead time. Depositions are usually timed, so this creates a major consideration for attorneys when they are strategizing about when and how to present exhibits and how they frame and time related questions. Where appropriate, consider strategies to reduce toggling back and forth between documents.
  • Leverage Break Time: Breaks during remote proceedings are completely different than when participants are in the same location. For one, the convenience of remote sessions makes it easier for a larger group from the legal team to participate. Breaks can thus be used as a strategy session, with numerous lawyers able to provide feedback and collaborate on a separate conference bridge. Also, while a witness may leave her laptop behind when attending an in-person deposition—to avoid discoverability of anything on it—that concern is no longer in play during a remote proceeding. Witnesses can thus use break time to fact check and brush up on certain case details using materials and devices kept in a separate part of their home. However, the witness should be prepared to explain what they reviewed or did during the break as that is fair game for opposing counsel to ask.
  • Remember to Mute: The need to mute may seem obvious, but it’s surprisingly common for deposition participants to forget to mute, and then interrupt a testimony. In one deposition, an unmuted participant started making personal calls on the side, and the entire process had go off-the-record in the middle of questioning. Similarly, all participants need to be reminded to speak slowly and pause frequently, to avoid talking over each other.
  • Rest Up: Between technical difficulties, extended breaks and participants joining from different time zones, remote proceedings will take far more time than they do in person. A single deposition can make for a really long day. All active participants need to be prepared and well rested, so they can make it through the duration with focus and accurate testimony.
  • Beware of Security Issues: Virtual platforms introduce security vulnerabilities that are not typically on counsel’s radar. When arranging a remote deposition or legal proceeding, it’s important to keep security in mind and implement strong protections around the technology being used.

The legal field will continue to shift in response to restrictions stemming from the global COVID-19 pandemic. Many longstanding procedures and practices are now evolving, adding equal parts complexity and convenience. FTI Consulting is committed to remaining at the forefront of this change and working with clients to leverage technology, processes and strategies to ensure continuity in the face of existing and emerging challenges.