You sued your doctor.
You believe he screwed up before the whole corona virus pandemic happened.
You started your lawsuit months before the country was in lockdown.
Your attorney told you that at some point in the near future you'd have to answer questions in his office.
Questions by the attorneys who represent the people you sued in your lawsuit.
This question and answer session is known as a deposition.
Lawyers also call it an examination before trial.
It takes place in our office.
In our conference room to be exact.
But you should know two important things...
There's no judge there and there's no jury there either.
It's just you, your lawyer, the defense lawyers and a court stenographer to record all of the questions you're asked and all of your answers.
You think it's a piece of cake.
You think it's informal because it's being done in your lawyer's office.
You think it's just a dress rehearsal for trial.
The reality is that your pretrial question and answer session is just as important as if you are testifying at trial.
The answers that you give will lock you into what you can say at trial a year later.
If at trial you contradict what you said during your pretrial deposition, the defense lawyers will use that to show the jury that you cannot be trusted.
Your lawyer was planning to have you come into his office in March in order to prepare you for questioning.
Then he was planning to schedule your deposition in early April.
Those dates would comply with the court order on when these depositions had to be completed.
Then came the coronavirus.
Then came the lockdown.
Then came social distancing.
Then all lawyers began working from home.
Law office were shut down.
Face to face depositions were no longer being done.
Nobody wanted to be in the same room.
Not the clients.
Not the attorneys.
Not even the court stenographers.
"Hey, what about doing my deposition by video?" you ask.
Sounds great. Let's do it.
HOLD ON THERE TIGER! Not so fast.
I've done video depositions.
I've done video conference depositions.
There are pros and cons to doing it by video.
Let me share with you a few 'pros' to doing your deposition by video.
Then I'll share with you the BIGGEST drawback to using video to conduct your pretrial question and answer session.
REASONS FOR USING VIDEO TO DO YOUR DEPOSITION:
- Ability to proceed forward with your question and answer session without being in the same room with eachother.
- You never have to leave your home.
- You don't have to fight traffic, find a parking spot and spend all day in an attorney's office. (Convenience)
- Assuming all the attorneys agree, it will allow you to keep your discovery schedule on track.
DRAWBACKS TO USING VIDEO FOR YOUR DEPOSITION:
- Technology may not cooperate. You may have glitches in your Wifi. You may have glitches in your video conference platform. Your audio may not be working well. That means that you will not be heard. That's a problem. The court stenographer needs to know EXACTLY what you said. Your attorney needs to know EXACTLY what the question asks to make sure it's a proper question. The opposing lawyer needs to know EXACTLY what your response it in order to ask the next question. If there's a technical glitch anywhere along the way, that would impair one or more of those people to make sure that everything is being done correctly.
- Your attorney can't kick you under the table when you start going off topic. I say that sarcastically. Attorneys don't kick clients under the table. But there is some truth to it. When doing a video deposition, if you have a question you need to ask your attorney, you can't turn to your lawyer and say "Can I speak to you outside for a moment?" Instead, you'll have to ask for a break and then call your lawyer on his cell phone to ask your question. It's awkward but doable.
- If the attorneys have a dispute about a question or a topic, it becomes very difficult to contact the court or court attorney to break a stalemate. That means that whatever dispute arises, the attorneys will have to make their views known so the court reporter can record it and then one lawyer or more will have to formally ask the court to take action on their request.
- There are other drawbacks, but rather than go on, let me get right to, in my opinion, the BIGGEST drawback to using video for your deposition:
Most video conferencing platforms have the ability to record the video conference. For example, if you use ZOOM to conduct your deposition, other than the privacy issues that have become public knowledge recently, there's another problem. Each participant can record the video conference. At the end, they simply press the button "End recording," and it will ask you whether you want to download the recording.
Think about that.
Your lawsuit is semi-private.
In New York, in cases involving accidents, medical malpractice and wrongful death cases, we typically do NOT videotape depositions. There are a few instances where we can, but in 99% of the time, we don't. Nor do we have expert witness depositions in State court, as opposed to Federal court.
Although some of your lawsuit details are in the public realm such as the names of the people involved in your case and the general type of case you brought, that's often the extent of what the public sees about your case. Nobody sees the questions and answers that you give during your deposition. The transcript of your deposition is not made public.
The only time the details of your case really fall into the public realm is if your case goes all the way to trial. Then, the courtroom is open to the public. Anyone can walk in, sit down and take in all the testimony and evidence presented.
Let's get back to your video deposition now.
You agree to do your deposition by video.
You want the convenience.
Keep in mind that your deposition could be recorded by the opposing attorney.
There is the possibility that all of your questions and answers, in video format, could inadvertently be posted online.
It might be an innocent mistake.
It might be intentionally released.
It might be part of a campaign to malign you and your case.
You just don't know.
You don't want your deposition, in any format, posted online.
You don't want it in the public realm.
You don't want your friends or relatives watching it.
You don't want to find yourself on your local news.
You don't want to find your boss or co-workers watching it.
Since most video conferencing platforms permit video recording of your conference, you need to get your attorney to have the opposing attorneys PROMISE that they will not video record your deposition. They have to promise and guarantee that under no circumstance will any recording be permitted to be released anywhere. Not online. Not in the public realm. Nowhere. If they break their agreement, your attorney has to fashion an agreement with the other attorneys about what will happen if they break their promise.
Should you do it?
It's up to you and your attorney.
Have questions about your matter that happened here in New York? If you have NOT yet started a lawsuit and have questions about your matter that happened BEFORE the covid 19 pandemic, then I invite you to pick up the phone and call me at 516-487-8207. You know I answer questions just like yours and welcome your call.