Senior Associate Amy J. Galatis Shares Important Virtual Deposition Tips in Mass Lawyers Weekly

The coronavirus known as COVID-19 has significantly affected the legal profession. While some of COVID’s effects are not welcomed, the pandemic has become an impetus to some positive legal changes. Right in between the good changes and the bad changes in the legal landscape are virtual depositions. There are many positive aspects of virtual depositions, but also some negative drawbacks. Some of these relate to technology itself, whereas others relate to the inherent nature of a virtual deposition versus a traditional, in-person deposition. This is also a rapidly evolving issue with a steep learning curve for both parties and lawyers.

Here at McCarthy Bouley Barry + Morgan, our experienced team of medical malpractice lawyers have already began to address these issues and advise other lawyers throughout Massachusetts on best practices for virtual deposition. Our Senior Associate Amy J. Galatis is one of our experienced trial attorneys who tackled this topic very early in the pandemic. She published an article in the Mass Lawyers Weekly providing some critical tips how conduct technically and procedurally accurate virtual depositions. Weeks after her publication, the Supreme Judicial Court of Massachusetts issued an updated order addressing some of the most important and glaring procedural issues, which was again updated in October of 2020.

What are Depositions?

Depositions are a critical component in every case, especially medical malpractice cases. Normally these are performed in person where the parties, witnesses, attorneys, and court reporter or stenographer are all in the same location. The stenographer swears the witness under oath, and the attorneys (usually the attorney for the party opposite of the witness) asks questions that are recorded. The line of questioning usually ranges from an account of what happened, damages or injuries, liability, and other pertinent issues raised in the pleadings.

The advantages of an in-person deposition are that a witness’ entire body language can be read, facial “micro” expressions cannot be easily hidden, and the other interactions outside the deposition (i.e., walking to the car or even just standing up) can be observed to gauge the true level of injury. These can be important evaluators for trial.

Virtual Depositions

However, a virtual deposition is one that is completed remotely. This means that the parties, witnesses, attorneys, and stenographers may all be in different locations. The benefit of virtual depositions is to allow for easier scheduling and no travel limitations, however the disadvantages are that a witness can easier cloak body language, expressions, and otherwise avoid other in-person interactions. Typically these types of depositions are performed on a video streaming service.

Top Virtual Deposition Tips from MBB+M

In addition to these other drawbacks noted above for virtual depositions, there is a whole host of technological and procedural issues that need to be addressed. While some issues are minor, other issues can affect the substantial rights of a party. Some mistakes could even cost a party considerable lawyer or stenographer fees all to just resolve technical issues. Preparation for a deposition is always important, but it is even more important with virtual depositions.

Some of the most important virtual deposition tips that need to be applied include the following:

  • Use a program that has sufficient security and options to ensure that the deposition cannot be hacked, altered, or otherwise interrupted by a third-party. This may mean “test-driving” the device to be used before to ensure that the connection, video, audio, and connection are all working and are all secure;
  • Determining how to share exhibits through screen sharing or having the court reporter display them;
  • Confirm whether a deposition is audio only or both audio and video recorded;
  • Confirm location of deposition, even though Supreme Judicial Court set location as county where the deponent is located;
  • In representing a deposition client, part of preparation should include ensuring the client has a quiet place for the deposition and a plan for a circumstance if there needs to be an attorney-client privileged conversation (i.e., mute and have a landline available); and
  • Allot more time than normal for a virtual deposition if technical issues arise (do not double-book yourself).

MBB+M is Prepared for Virtual Depositions

While the advent of virtual depositions was quickly spurred by COVID, it is unlikely that virtual depositions will just disappear when the virus does. Virtual depositions do have utility and there are some advantageous uses.

Here at McCarthy Bouley Barry + Morgan, our experienced trial attorneys brainstormed the best possible practices for conducted virtual depositions before we ever started streaming one. We prepared for the worst issues, including technological mishaps that undoubtedly occur. It is through this preparation that we have been able to zealously advocate for our clients. Our attorneys, particularly Amy J. Galatis, conducted some of the first virtual depositions in Massachusetts.

If you have questions about your upcoming virtual deposition, or if you are interested in learning more how we can represent you during a virtual deposition, contact our law firm by calling (617) 225-2211 or using the convenient “contact us” box at the bottom of our website.