The Covid-19 pandemic has wrecked havoc upon the court system nationwide, as in-person dockets have been postponed or eliminated, jury trials have been cancelled at least through the end of 2020, and both the civil and criminal discovery process has been slowed significantly. In response, the Florida Supreme Court has empowered local courts to conduct most hearings over the Zoom platform as well as expanded the use of Zoom to take discovery depositions.
Virtual depositions have been used in the past to take the sworn testimony of secondary witnesses and those at a distance that didn't justify the travel expense of taking their deposition in person. In those instances, the witness would typically appear at a court reporter's office and be placed under oath by a reporter at that location who would thereafter transcribe the deposition. Because of concerns over Covid-19, the witness may now be sworn over Zoom by a reporter in a remote location. As an example, in a recent case I took the depositions of witnesses located in Tampa, Florida and Tifton, Georgia from my office in St. Petersburg, Florida after they had been sworn by a court reporter located in Orlando, Florida. I see this as becoming more prevalent even after the current pandemic threat has passed.
Taking depositions by Zoom has obvious benefits: reduction of litigation costs and travel time, and convenience for both witnesses and attorneys. However, in my practice I will continue to take the depositions of a number of types of witnesses in person, if possible. They include the opposing party, expert witnesses, and other critical witnesses such as eyewitnesses and those that may provide valuable impeachment testimony. These are witnesses that need to be across the table in the same room when being questioned, especially on cross-examination. In addition, these witnesses are often asked to authenticate and are questioned regarding documents and records - a task that just isn't as smooth or effective over Zoom.
To witnesses, a few practical tips:
1. Remember, this is a formal court proceeding, even if you are appearing by computer in your kitchen;
2. A Zoom deposition is not a telephone conversation, treat it the same way as in-court testimony;
3. Be prompt. Zoom works fairly well, however it may take additional time to coordinate all of the attending parties;
4. Take extra care not to talk over the questioner, especially when an objection is made.
5. Shut off all cell phones. A witness is not permitted to have any contact with third parties ( except for their attorney)
While video depositions have been around for a while, both the current pandemic and the "Zoom" type technology which has emerged will make them much more prevalent in the future and hopefully streamline the discovery process. The "new normal" will not remain "new" for very long.
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