Kurt Birkenhagen
A lawyer in Georgia gets scheduled for a day-long deposition that’s a long drive away. But she has a daughter in school. There’s no way she can get her daughter to school, get to the deposition, and make it back to the school by the end of the day.
Her solution? A deposition by telephone.
Why Do Telephone Depositions?
Travel time is the main reason some lawyers prefer depositions by phone.
“How many times have you been stuck in an airport waiting for your delayed flight, thinking to yourself there are so many better things I could be doing right now,” writes Taylor Dillehay, Esq, a medical malpractice attorney in Wichita, Kansas.
“Attending a deposition by telephone when the witness is not local isn’t just about convenience to the attorney, it is also about a cost savings to the client,” says B. Robert Farzad, Esq., of Farzad Family Law. “Your client saves fees if he or she pays you by the hour and you do not have to fly 300 miles just to attend a deposition. And those savings are not just for attorney fees. It’s also the cost of the flight, lodging, etc.”
Depositions by telephone aren’t all about convenience—they may also give you an advantage in your case.
For instance, some lawyers don’t like to see witnesses until they question them in court, so the witness has to experience the lawyer’s style of questioning for the first time. An in-person deposition takes away this advantage. If the only interaction has been over the phone, the witness won’t be as familiar with the lawyer’s cadence and approach.
A telephone deposition also keeps a lawyer’s focus in the right place—on asking the right questions, and actively listening to the deponent’s responses. During an in-person deposition, some lawyers are tempted to search a witness’s physical behavior for giveaways. Warns Dillehay: “The truth is that facial expressions and other body language give very little useful information.”
The Rules Of Telephone Depositions
States make their own rules around telephone depositions. The main complication of telephone depositions is that someone must be present to swear in the witness, and verify that the person being interviewed is who they say they are.
Some states require the court reporter and the deponent to be in the same room. Other states allow the court reporter to be in a different location, but require a notary public to be on-site with the deponent to verify their identity. As of this writing, 32 states don’t have any rules at all.
The National Court Reporters Association recommends that court reporters only swear in witnesses in-person, even if an attorney offers to stipulate otherwise.
Setting up the call is usually left to a conference call operator, who can connect the parties—rather than having everyone exchange private phone numbers.
Tips For Successful Telephone Depositions
For the court reporter, accurately recording every word of the deposition can be difficult when lawyers or witnesses don’t speak loudly enough, when different voices are indistinguishable, and when slight hiccups in phone connectivity cause words to get garbled.
Exchanging and displaying evidence is also more complicated when deponent and lawyer aren’t in the same room.
Happily, these problems are fixable.
- Choose a provider that can guarantee high-quality audio. Simply having clear audio, free of skips or random garbling, solves many of the court reporter’s problems.
- Court-Reporter.net recommends having everyone on the call 10 minutes early to fix any technical issues. This way you’ll avoid losing valuable deposition time on troubleshooting.
- Ask participants to identify themselves every time they begin speaking. Some voices are so similar, it’s hard for the court reporter to tell them apart.
- AtkinsonBaker Court Reporters recommends that attorneys stay on the call for a few minutes after the deposition ends to clarify spellings or technical terms for the court reporter.
- B. Robert Farzad of Farzad Law suggests that if attorneys aren’t going to be in the same place, they should consider exchanging exhibits ahead of time via email. This way, everyone has the exhibits in front of them, lessening confusion about what exhibit the attorney is presenting to the witness.
- Record the call so the court reporter can go back and listen to certain difficult segments after the call is over and make sure their transcription is correct.
Clear audio, preparation, and simple common sense will make a telephone deposition go smoothly. As an attorney, you can avoid travel time by doing the deposition from your firm’s conference room, from your home office, or from a hotel room while traveling for another case.
To find out more or to set up a deposition conference call, contact us at 1-888-498-9240 or email here.
