Most attorneys find it necessary from time to time to conduct depositions via telephone rather than in-person. Conducting depositions over the phone can be a good way to cut costs and save travel time, and phone depositions may make the most sense based on witnesses’ location and/or ability to travel. Based on our experience setting up many such depositions, here are a few tips for making the most out of them and avoiding common phone depo pitfalls.
Seemingly, telephone depositions are very similar to face to face depos. A court reporter must be present. Witnesses must be sworn in. Attorneys will ask questions of the witnesses, and the court reporter will record questions and answers. But, since participants in telephone depositions are in different locations, in practice it can be very different. In addition to the typical depo preparation, attorneys will have to ensure that conference call services are easily accessible to all individuals involved with the deposition so that they can dial in to participate. Also, since telephone depositions are purely based on audio, attorneys and court reporters are forced to rely only on what they hear. Non-verbal signals like body language and facial expressions are imperceptible, requiring that lawyers ask more probing questions than typical depositions.
While on its face, phone depositions may seem easy and convenient, there are many cons to consider. First is the very real possibility of technical difficulties including dropped calls, equipment failure, poor sound quality or a phone line malfunction including static, muted lines or interference. To ensure a good connection and adequate volume, all deposition participants should call in 10 minutes prior to the scheduled start.
Another problem is when several people talk at once. This can be a setback in any deposition because words can be lost and the record gets muddied, but it is much worse in a telephone deposition. Most speakerphones are unable to handle multiple voices simultaneously. A lot of conference phones tend to mute other speakers when another starts talking. This can seriously delay a deposition’s progress and force the court reporter to read back sections of the record (if he or she heard them at all). If a reporter cannot hear what a witness or attorney is saying, it will not be properly documented and will not be entered into the record. Even if the phone does pick up all voices, it is harder for the reporter to distinguish between the speakers when they are not in the same room. The best rule to follow for telephone depositions is for every speaker to identify themselves every time they start talking to avoid any confusion.
As we mentioned earlier, non-verbal witness cues are impossible to detect in phone depositions. Attorneys will find that they are at a major disadvantage not being able to see a witness’ body language or facial expressions, especially for those who like to change their line of questioning based on something a witness does. Reporters and lawyers are also unsure what documents opposing attorneys or witnesses may be using.
Logistically, phone depositions can be difficult to set up. Under most state regulations, oaths cannot be administered over the phone, so a court reporter must be present at the location of the witness. Telephone depositions also require some advance consideration for exhibits, specialized word lists and case captions. Normally attorneys simply give these to court reporters in person at a deposition. But when depositions are conducted over the phone, these documents should be sent to the court reporting firm well in advance.
Diamond Reporting employs court reporters nationwide who are experienced in various types of depositions whether by phone, video, in a law office or using one of our 12 deposition centers. We are a one-stop source for all your court reporting, videography and transcription needs.