In part one of this two-part blog series, we went over some basics on how to deal with a frustrating or intentionally misleading witness during a video deposition. Such witnesses are always a headache, but remote depositions present a few different potential issues than live ones in these cases, and there are often different solutions you may focus on for a troublesome witness.

At Phoenix Deposition Services, we offer not only a wide range of video deposition solutions and related court reporter services, but also assistance for attorneys in a number of related situations. What are some other methods we tend to recommend to attorneys dealing with difficult witnesses during a video deposition? Here are several.

Be Familiar With Technology

One broad approach that shows immense value in many areas of video depositions, including dealing with tough witnesses, is a robust understanding of the technology behind the deposition and your court reporting equipment. For example, if you — or your court reporter — suspect that a remote participant is using video streaming software (which could be used to artificially increase volume levels), there is a device offered by some manufacturers to determine whether such programs are being used.

In addition, understanding how to adjust or cut off video feeds can take an unpredictable deposition and make it more manageable for you. This is particularly true if the technology being used doesn’t offer any obvious ways to do so, which could be the case with certain chat-style applications being used for depositions.

No one is saying you have to become an expert in remote video technology overnight, not by a long shot. Rather, a simple familiarity with the basics of deposition technology (and how it’s meant to work) can make all the difference.

Ensure Proper Recording and Documentation

Finally, the use of professionals for reporting and documenting the deposition often plays a role of its own in limiting issues with tough witnesses. Some witnesses are only behaving badly because they don’t think their behavior will have consequences; the deposition recorder and reporter are two people that should be able to hold them accountable if their actions cross any lines.

If a witness perjures himself or herself, for instance, your documents (and your court reporter) will provide invaluable evidence of the incorrect statement. There will be no debate or deniability. In such cases, you may want to seek the assistance of a third party to serve as an official stenographer for your deposition, no matter how it is being conducted – remote or otherwise – and utilize their services for any follow-up meetings that result from the deposition. This way, you’ll have a verbatim record of the conversation from beginning to end, which can be a powerful tool for your particular case.

For more on how we’ll play this vital role for you, or to learn about any of our Phoenix court reporters or video deposition services, speak to the staff at Phoenix Deposition Services today.

There are several potential uses of deposition testimony within the legal realm, and one of these that’s especially significant is the use of this testimony during the actual trial itself. Reading from deposition transcripts may not be the most exciting part of any trial, but it’s a common practice that often plays a major role in helping attorneys drive home their arguments as they present information on behalf of their client.

At Phoenix Deposition Services, we’re proud to offer a wide range of deposition services, video depositions, and related solutions for all our clients, including many attorneys throughout the Phoenix area. We’re often asked about the details of utilizing deposition transcripts and records within trials – why it’s done or not done in certain cases, whether it’s permitted for your case type and other related factors. Here’s a primer on using depositions within trial, plus some of the specific benefits that often come with doing so.

Is it Permitted?

First and foremost, it’s important to understand that while deposition testimony is usually permitted for use in standard trials, this is not always the case. While there are several different applicable rules of civil procedure that may be put in place by your state or even various local governing bodies, and you should be doing careful research on these, it’s also vital to be aware of Federal Rule of Civil Procedure 32.

Combined with the Federal Rules of Evidence, this is the primary set of documents that govern the use of deposition testimony within federal court trials. Generally, it allows for all or part of a deposition to be used against a parts so long as the party was present or represented at the taking of the deposition or had reasonable notice of it; in addition, testimony must be used only to the extent it would be admissible under Federal Rules of Evidence if the deponent were present and testifying in the courtroom. In addition, there are several sub-categories of the Federal Rule of Civil Procedure 32, including proving that testimony is admissible plus some of the ways a deposition transcript can be used. Be sure you know this information before entering federal court, or that you know the pertinent regulations within your state or area for non-federal matters.

Objections and Rules of Evidence

As an attorney, you may also want to object to deposition testimony being used against you in a given trial. Rule 32 sets out various types of objections, including objecting to admissibility of testimony that would not be admissible if the witness were present and testifying in person. Other objections include claims that testimony included hearsay, testimony is irrelevant, testimony is prejudicial, or testimony is cumulative.

If you attempt to object to testimony being used, or if you’re preparing for a potential objection from opposing counsel for your use of such deposition testimony, it’s vital to be familiar with the Rules of Evidence we mentioned above. These will contain comprehensive definitions of procedural rules and cases where testimony might not be admissible.

Our next several sections will go over some of the specific benefits of utilizing deposition testimony within a trial, plus why this is a common strategy taken by attorneys in the courtroom today.

Testimony of Absent Witnesses

Perhaps the single largest benefit of utilizing deposition testimony is also very straightforward: For witnesses or anyone else who is simply unable to attend an actual trial or hearing, the deposition allows their testimony to be taken and heard by the court regardless. As long as the proper deposition rules and regulations are followed, something every attorney is well aware of, the law states that courts must allow sworn deposition testimony to carry exactly the same weight as it would if it was given in-person during the trial.

What defines an acceptable reason for a witness to be absent from a trial? There are a few that are generally accepted by courts, including (but not necessarily limited to) the following:

• The witness is deceased by the time of the trial
• The witness lives more than 100 miles from the location of the trial or hearing
• The witness is unavailable due to age, illness, infirmity or imprisonment
• The witness could not be compelled to attend via subpoena

Using Prior Testimony

In certain legal fields, particularly those like class action or commercial litigation, parties involved in your case will often have been involved in prior litigation on a similar or even identical subject. And in these cases, based on an opinion issued in Baldwin-Montrose Chemical Co. v. Rothberg and resulting precedent, depositions taken in one action “can be used in another action if they contain common questions of law or fact,” plus substantial identity of said issues.

Translation: If parties in your case have given prior deposition testimony that will be relevant to your case, even if it was for another case, you can generally use it. This is often highly beneficial for litigators in specified fields.

Impeachment and Transcripts

Finally, one major tool available to attorneys is impeachment – but this must be used properly. You cannot be too heavy-handed with witnesses in this area, a practice that risks being viewed too aggressively by juries.

This is another area where using deposition testimony is hugely valuable. By utilizing their transcript and keeping your line of questioning similar to what was asked during the deposition, you can identify inconsistencies – and perhaps even give the witness a chance to re-confirm their answer before presenting them with a contradictory statement that may qualify for impeachment.

For more on why it’s so valuable to use deposition testimony within a trial, or for information on any of our Phoenix court reporters and our comprehensive services, speak to the staff at Phoenix Deposition Services today.

At Phoenix Deposition Services, we’re proud to offer numerous court reporter, court transcription and related services to a number of clients, including attorneys. These include a number of different hearing types that might take place, including arbitration hearings and several others, and we serve as a major resource for many attorneys and their clients in these kinds of hearings, allowing for proper transcription and record-keeping at all times.

As attorneys who have completed many of them are well aware, entering into an arbitration agreement is a huge decision for both the parties involved. It includes the forfeiture of a traditional courtroom trial, and while this does allow for a faster resolution to the case, it leaves more variables in the hands of the arbitrator, plus is often difficult to appeal. For this reason, it’s vital that attorneys entering the arbitration realm be fully prepared for all possible contingencies, plus be aware of their goals and how to achieve them for the client. Here are some of the top tips we can offer attorneys on this theme based on our years of experience in the arbitration hearing world.

Vague Clauses

An arbitration is a contractual agreement, at its core, and that means that there are even risks of making errors before the hearing itself if you’re not careful. Specifically, if you include vague or difficult language in any of the clauses of this agreement, it could lead to months of delays later on down the line while parties dispute the specifics.

Rather, make your arbitration clauses clear and straightforward at all times. These will address how arbitrators will be selected, who is in charge of paying their filing fees, and the kinds of disputes that qualify for this arbitration. In addition, consider how these areas will impact your discovery process, such as phrasing discovery rules to allow for specific records or data.

Perfunctory Arbitrator Approval

One of the most important phases of the arbitration process will be the selection of the arbitrator, and this may have a major impact on the case moving forward. In most cases, this process will be done through either the American Arbitration Association or another ADR group, and this will involve both attorneys being provided with a list of possible arbitrators for the case.

In these situations, it’s vital to take the actual time to pore over this list with great discretion, similar to the way you’d approach voir dire in jury selection. Go through the list and rank your best options based on all the factors available, plus mark those you view as unacceptable. Do everything you can to learn about their history in arbitration, including looking up their past cases to find out how they tend to arrange their arbitrations. If you know a certain arbitrator has a tendency to deny discovery requests, for instance, but your case will involve significant discovery needs, you should move this arbitrator well down your list.

Mishandling Arbitrator

Now, while the advanced research you do on your arbitrator is vital, you won’t learn everything about them based on it. Especially if this is an arbitrator you have not worked with before specifically, you should spend the early parts of the hearing learning their mannerisms, their body language and how they like to communicate – and then using that information to your benefit.

Let’s say, for example, you notice your arbitrator likes to take extensive hand-written notes during the hearing. If you see this, you should plan to slow down your speech just a bit when speaking or asking questions – this will give the arbitrator more time to take detailed notes, and will be sure nothing is missed. While these may seem a bit minuscule, these kinds of little details will often help your case be viewed positively by the arbitrator.

Discovery Phase Mistakes

As those who have been through these cases before are well aware, the next step after arbitrator selection will be the pre-hearing discovery phase. And during this part of the process, it’s absolutely vital to fully understand all the discovery rights you have, plus any limitations placed on you and any other important discovery rules set by the group administering arbitration.

One important note here: Arbitration differs from a traditional trial in a few ways, but primarily in the way civil procedure rules are applied (or not applied, in the case of arbitration). Many of the formal document requests are not required, though there may be certain limits placed on discovery depending on your case. You must know the detailed thresholds here, including refreshing yourself on standard arbitration rules if needed.

Poor Exhibit Prep

Next up after discovery is the exhibits you plan to use during testimony, which still usually refer to physical exhibit “books.” There are several ways these can become complicated if you aren’t prepared, and especially if you aren’t taking the time to coordinate with the opposing party – you might present certain documents as different exhibits, for instance, and you could end up in a situation where the arbitrator is annoyed at both of you for wasting his or her time.

Instead, be sure to communicate properly here. Discuss exhibit numbers ahead of time with opposing counsel, plus prepare joint exhibit books that both parties can go over and approve. This will also make cross-examination far easier during the testimony phase.

For more on mistakes to avoid during arbitration hearings, or to learn about any of our Phoenix court reporters, speak to the staff at Phoenix Deposition Services today.

There are a number of important factors that both attorneys and subjects should be considering when entering any kind of deposition or video deposition, and body language is absolutely one of these, and often an underrated one. Also referred to as “nonverbal communication” by many, body language refers to expressions, posture, gestures and even tone of voice in some situations – and it can have a larger impact than you might think on how various parts of a deposition, hearing or arbitration might be received.

At Phoenix Deposition Services, we’re proud to offer robust deposition and video deposition court reporting and transcription services, plus numerous related services and resources for attorneys and their clients. Body language is a common area where clients will often have questions, and even some newer attorneys will benefit significantly from general expertise on how to carry yourself nonverbally during a deposition, whether in-person or virtually. Here are some specific areas that go into body language, plus the simple tips we recommend in each of them.

Posture and General Framing

One of the single most common and important nonverbal cues for an attorney in many settings, including depositions, is good posture. While sitting, for instance, you should have your back straight and should be perceived as attentive and interested; if you’re slouched, on the other hand, this will be taken as relaxation or even defeat in some cases, not the signs you want to give off. For in-person depositions, it’s important to remember that there could be eyes on you at any time – this is particularly vital to keep in mind if you’ve spent much of the last year only performing video depositions and are just now getting back in the courtroom, as some bad habits may have formed over the last 12-plus months.

For video depositions, a big part of this theme comes down to framing and the way you position yourself in the video. Remember that your audience will only have a view of your upper body – but this still means back and head posture will be seen, and you should take the same kinds of themes. In addition to planting your feet and keeping your back straight, your computer or laptop should be set up on a stable, flat surface that will not move or vibrate, as this sort of thing will make other participants uncomfortable.

Clothing Considerations

Another important element in body language that some don’t consider closely enough: Clothing, which is absolutely part of the puzzle here. If it’s part of your appearance, it can be perceived as part of your body language.

Attorneys in any courtroom or video deposition setting should be dressed professionally at all times, ideally in a suit and tie. Of course, you should ensure that your setup here is comfortable and will not cause you any issues during the deposition itself, as any losses in focus or visible fiddling with your clothing will not be taken well by other participants.

Making Eye Contact

No matter the setting you’re in for your deposition, making eye contact with other relevant participants is vital. This is a bit simpler in traditional depositions, where maintaining eye contact with a witness, judge, client or any other individual in the room is relatively straightforward.

For video depositions, this can require a bit of adjustment for some. The camera lens on your computer will obviously be your primary view point, but it’s important to practice shifting your gaze between the camera and your notes, which might either be on the screen in front of you or on a notepad on the table. With a little repetition, however, this is a simple approach to achieve.

“Active” Listening

When we talk about active listening, we’re referring to the way people perceive you while you aren’t talking. Whether in-person or virtually, treat every part of the deposition like it’s important and worth your time, including maintaining good posture and not talking to anyone else. Every now and then, a simple nod or similar expression to show that you’re listening and engaged will go a long way.

Monitor Your Expressions

Facial expressions are also a big part of body language, and you should be mindful of yours – especially in a video deposition setting where, even if it’s not your turn to talk, you never know when someone might be looking at you on the screen. This is particularly important if the deposition itself is being recorded, as you never know what kind of reaction or expression you might have that will be captured and recorded forever. Try to keep your expressions mostly neutral.

Hand and Arm Gestures

Finally, what about those who regularly use hand and arm gestures as part of their communication while speaking? This is a common approach for many litigators, and it’s generally pretty simple for in-person hearings, where you’re in a large room and can be seen easily by everyone else involved.

For video depositions, however, you might have to be careful here. Arm or hand motions that are too exaggerated or too far away from your torso might not be captured entirely by your camera, or might be partially missed if you move too fast. In addition, you have to be sure that if you take part in any gestures or hand motions, these don’t block your face or audio to others participating.

For more on how to maintain proper body language during any deposition, or to learn about any of our video conferencing or Phoenix court reporter services, speak to the staff at Phoenix Deposition Services today.

For certain kinds of legal issues or cases, arbitration hearings are far more convenient and expedient for everyone involved, attorneys included. Average arbitration cases tend to be resolved much faster than district court cases that go to trial, and are also known to be cheaper and much less complex than situations where litigation is needed – but just like any other form of court proceeding, arbitration requires proper preparation.

At Phoenix Deposition Services, we’re proud to offer not only a huge range of video deposition and video conferencing services, but also assistance with reporting for hearings and arbitrations of several varieties. And in the past year, the demand for remote and video forms of arbitration has skyrocketed around the country. If you’re participating in such a remote arbitration, what are some important themes to prepare for to ensure the process goes smoothly and works to your benefit and that of your client? Here’s a primer on best practices for virtual arbitrations.

Security Themes

First and foremost, cybersecurity is a vital theme that any attorney taking part in a video arbitration, deposition, conference or other legal process must be careful to maintain. All arbitrations should be arranged with a password protection and a unique meeting identifier, plus we strongly recommend dual authentication to prevent mistakes or malicious access attempts.

If possible, look to distribute the meeting password to the relevant participants separately from the meeting ID number. This is another form of dual authentication that makes it tougher for any dishonest individuals to attempt to breach your security, plus will make those who are taking part in the arbitration feel more at ease. These are vital baseline concepts for any video deposition, arbitration or proceeding of any kind.

Lighting and Related Themes

Next up, especially for those who regularly conduct virtual proceedings like these, is to arrange your “studio” setup. We put that word in quotes because we’re realistic and understand that most attorneys won’t be able to set up a true professional video studio in their home or office – that said, there are several simple concepts you can hit on to ensure the viewing and audio experience is high for everyone.

For starters, ensure the location you’ll be filming in has good light, preferably natural light. Webcams and related online video formats struggle to provide good picture when there isn’t enough light, and you’ll deal with shadows and grainy footage if this is the case. If it’s possible, try to test out your video screen to ensure you have the proper light before the arbitration hearing begins – do this on the morning before the arbitration itself, so you know the light conditions will be similar later in the day. If your screen is too dark, you may need to add some light with a mount, lamp or related item.

In addition, confirm you have a proper and appropriate background, plus clear any items from the picture that might be distracting. Be sure there’s no chance of someone walking behind your picture to disrupt the proceedings, plus that there’s no risk of audio interruptions on your end, even if this involves using headphones or muting yourself when you aren’t speaking. At this point, with most folks having over a year of experience with virtual meeting types, these kinds of mistakes should be easily avoided.

Be Professional

Just like in any in-person arbitration or other legal proceeding, it’s vital to be professional and smart about how you present yourself at every moment. This begins with the way you dress – solid colors without anything flashy, but the normal suit and tie setup is expected in most cases.

In addition, plan to arrive into the virtual session early. This ensures you’ll be able to handle any log-in or technical problems that might be taking place before other participants have shown up.

Eyes and Speech

Any good attorney is well aware of the value of eye contact during many proceedings, and while a remote arbitration is certainly different from an in-person one, this theme remains. This might be an area that’s a bit difficult at first, as research has shown that some people become a bit fixated on their own image on the screen rather than looking into their camera – but hopefully the last year and change has prepared you for this. Do your best to always look at the camera when speaking; some will post a photo near their webcam they can look at to help here.

On top of this, just like any court proceeding, you should speak clearly and concisely. In fact, just in case of any audio issues or lag, you should be even more accurate and concise than you might normally be. Also, try to avoid speaking over other participants, as virtual audio may not pick up both of you and could require the court reporter to halt the proceedings and ask for a clarification.

Value of Repetition

If you’re like most attorneys who handle arbitrations regularly, this won’t be your first virtual session – nor your last. The phrase “practice makes perfect” exists for a very good reason, and it’s one you should take to heart if you know you’ll be participating in regular video arbitrations or other proceedings. Practice speaking into the webcam, for instance; many will record a video of themselves so they can watch it back later and take notes. You might even consider a mock deposition or day-before practice session.

For more on how to properly prepare for and execute a video arbitration, or to learn about any of our court reporter or video deposition services, speak to the staff at Phoenix Deposition Services today.