When I was a hospital administrator, a friend and colleague used to say, “I wouldn’t be paranoid if the world wasn’t out to get me.” I’ve always thought that statement was so funny. Sometimes it’s entirely appropriate, too.
Recently, I’ve been thinking about healthy paranoia in a new way—remote or Zoom depositions. Regardless of your thoughts on social distancing, stay-at-home isolation, or masks, it’s an absolute fact that the COVID-19 situation has caused many attorneys, clients, and witness to insist on remote, rather than in-person, depositions.
As a lawyer trying to schedule depositions, that leaves one with two choices. Either get remote or Zoom depositions on the calendar by agreement or go to the court and move for an order to compel in-person deposition attendance. One factor informing that choice is that It’s hard to say how any particular judge would rule on such a motion.
To think about the potential concerns of Zoom or video depositions, it’s helpful to compare them to normal ones.
Traditional depositions
The normal way that Texas state court depositions are conducted is in person. Each side typically presents its witnesses at the office of the attorney for that side.
Under the Texas Rules of Civil Procedure, party depositions must be conducted in the county where the lawsuit is pending, unless the parties agree otherwise. Fact witness and expert witness depositions are routinely conducted at attorneys’ officer, court reporter officers, or the witness’s office.
All parties and their attorneys are able to appear in person at the deposition site and attend the proceeding. A court reporter is present to swear in the witness and transcribe all questions, answers, and anything else said on the record.
The rules require a party to notify all counsel of record if they intend to have a non-party witness attend the deposition. Any party had the option to invoke “the rule” to prohibit potential witnesses from attending the deposition.
During the deposition, if an attorney tries to coach a witness, it will be blatantly obvious to everyone in the room. They may shake their head or give other non-verbal cues to the witness on how to answer a question. This conduct can be called out by the other side on the record and typically puts an end to it.
Zoom, remote, or video depositions
Although this technology was around before anyone had even heard of the word “coronavirus,” it was rarely used in Texas state court proceedings.
One of the benefits of remote depositions is that there can be a substantial cost savings for clients or insurance companies funding legal bills, particularly for out-of-town depositions. With Zoom depositions, there are no travel expenses, meals to reimburse, or hotel stays. They certainly are less expensive and convenient.
Court reporting companies use Zoom and other platforms to host depositions and have developed software and procedures to make it relatively easy to introduce exhibits into the deposition record and display exhibits, documents, or other materials on the screens of the witness and attorneys.
As Zoom depositions becoming ubiquitous and everyone’s getting used to them, I expect they’ll linger around after the pandemic has been stamped out.
Despite the technological advances, in virtually every Zoom deposition in which I’ve participated, at least one participant has a connection problem that disrupts the proceeding, sometimes at particularly inopportune times. Even beyond that challenge, though, I still believe that in-person depositions are more effective for parties, key fact witnesses, and expert witnesses in complex, document-intensive medical malpractice cases.
Plus, I have a big concern with taking remote Zoom depositions that I don’t really know what’s going on around the witness. With remote depositions, the court reporter isn’t in the same room as the party or witness. The questioning attorney and lawyers unaffiliated with the witness aren’t in the same room either. But the same isn’t necessarily true for the attorney representing the party being deposed, or who’s presenting a fact or expert witness for deposition.
This is an issue that I’ve confronted head-on in an out-of-town Texas medical malpractice case. We sued a hospital and two physicians. We needed to schedule the physician defendants and some nurses who were hospital employees for depositions.
Interestingly, the two doctors had no interest in doing a Zoom deposition. In fact, they insisted on doing them in-person. I was certainly fine with that.
The nurses were a whole different story. The hospital attorney informed me that for several months the hospital system flat-out refused to allow their employees to participate in depositions in any way, shape, or form, inexplicably blaming their uncooperativeness on the coronavirus. Eventually, they relented and agreed to allow the nurses to be deposed by Zoom.
Although I wasn’t thrilled about the prospect of questioning key witnesses remotely, I agreed to do so on one condition—neither the hospital attorney nor any hospital representative could be in the room with each nurse while she was being deposed. The hospital’s lawyer wouldn’t agree to those simple terms.
“I wouldn’t be paranoid if the world wasn’t out to get me.” With no court reporter or other lawyers in the room, I was concerned that the hospital’s attorney or a risk manager would be off-camera and coaching these critical witnesses on how to answer every important answer. There would be no way to feel confident in getting the straight, truthful answers from the witness.
We were at an impasse for a while, but just this past week the hospital agreed to present the nursing witnesses for deposition in person.
I’m glad that this worked out. I’ve separately heard from lawyers and trial consultants that they’ve had first-hand bad experiences with remote deposition witnesses being coached by an anonymous person in the room. One potential sign is when the witness’s eyes wonder off camera after important questions.
Some attorneys who consent to deposing key witnesses by Zoom have started asking witnesses whether anyone is in the room with them. My preference is to avoid remote deposition technology for parties and other important witnesses.
If you’ve been seriously injured by poor hospital, physician, or health care in Texas, then contact an experienced, top-rated Houston, Texas medical malpractice lawyer to discuss your potential case. That’s one thing that can easily be done, at least initially, by telephone or Zoom!
