Perhaps you are too young to remember Mazda’s zoom zoom zoom commercial from early 2000. Up until the pandemic, if anyone said Zoom to me, I would have thought of that commercial. Today, “Zoom” has become a part of our day-to-day conversation due to the pandemic. The legal world has undergone a similar transformation, as legal cases needed to continue moving forward to the extent possible. In civil cases, one of the biggest changes I’ve seen has been how the great majority of depositions are now taken over Zoom. But is it here to stay?
What Is A Deposition?
In a civil case, a deposition is a discovery tool allowed by the North Dakota Rule of Civil Procedure 30. Think of a deposition as an opportunity for attorneys to ask questions of parties, witnesses, or expert witnesses, to “discover” what they know about the case, and what their testimony will be should the case proceed to trial. In North Dakota, a deposition is conducted by attorneys (a judge is not present), with a court reporter (and videographer if requested) taking down all testimony that is provided on the record. Think of it as a question and answer session between attorneys and a witness. Prior to the start of the deposition, the witness is sworn in under oath, and all testimony is provided under oath. The perjury rules apply should the witness not be truthful.
Most depositions prior to the pandemic were taken in person at an attorney’s or court reporter’s office around a conference room table. Since North Dakota is a big and fairly rural state, that usually meant a lot of travel for in-state witnesses or attorneys. For out-of-state witnesses (like expert witnesses), that meant all the attorneys on a case would travel to the witness to take the deposition in person. Of course, this means there was additional time and expense added to each case to simply accommodate travel.
While some attorneys would from time to time participate in a “telephonic” deposition, where the attorney phoned into the room where the witness and court reporter were, that was the exception. Also, it was rare that any deposition was taken virtually, mostly because not a lot of reporting agencies incorporated the technology into their practice, and requirements in a lot of situations that the reporter be with the witness to swear them in under oath. In one case where my flight was canceled while I was on the runway at the airport in Fargo on my way to a deposition, I was not able to make it to the expert deposition live. I immediately coordinated with the court reporter’s office to let me participate remotely via video conference, but since it was uncommon there were hiccups. Also, Zoom was not being used back then.
Then, 2020 hit. At the beginning of the pandemic, depositions for the most part in North Dakota stopped. After about a month or so, court reporters and court reporting agencies started to incorporate training for conducting Zoom depositions. While there was hesitancy right away by some attorneys who felt it was better to be in person with a witness, over time it became the way most depositions were taken.
While there are sometimes issues with technology, for the most part everyone has adjusted well. I believe that’s because most of us were forced to learn to use Zoom in our day-to-day lives, so it became the new normal. Now that we appear to be toward the end of the pandemic (fingers crossed), will the Zoom deposition be here to stay?
What Does The Future Hold For Zoom Depositions?
While I wish I could predict the future, of course I can’t. But, if I were a betting man (and I am), I would put my money on Zoom depositions (or virtual depositions) sticking around even when we are no longer worried about the pandemic. Perhaps not to the extent and frequency that you see them today, but I believe it will be at minimum a 50/50 split between Zoom and in person depositions.
Why? Because it is far more cost effective and far less time consuming to take a deposition via Zoom. Especially when dealing with out-of-state witnesses and expert witnesses, where traveling to the deposition costs a lot of time and money. It’s also easier for witnesses to be able to make time in their busy lives to appear for a Zoom deposition, rather than taking a half day or more to travel to have the deposition taken live.
SW&L Attorneys prides itself on the competitive edge we have with our willingness to incorporate technology into our daily practice. Practicing during a pandemic has been no different, and we have continued to move cases forward using tools like Zoom depositions. If you have questions about a case, please feel free to contact the office, we want to do all we can to help. If you came across this article because you are about to have your Zoom deposition taken, we hope it was helpful. This article is for informational purposes only.