You have been subpoenaed (called / volunteered) to give testimony at a deposition for a pending case; and ultimately at trial. You have never been involved in the legal process and are apprehensive. In light of the recently released decision (June 5, 2020) in Thomas v. BJ’s Wholesale Club, Inc., Superior Court of New Jersey, County of Middlesex Law Division, MID-L-5518-19, it appears that “remote” depositions are here to stay. As such, I have revised my previous article: “How To Be A Competent Witness” to include “video” etiquette as well. I have set forth what you should expect, and what is expected of you as a witness:
1. Depositions are a “quasi-formal” aspect of a judicial proceeding and should be treated as such. Therefore preparation is important.
a. Test your equipment;
b. Make sure you have an adequate Wi-Fi connection;
c. Become familiar with the platform that will be utilized for the deposition;
d. Try your best to have a source of light in front of you so that you can be easily seen. Back-lighting will cause you to appear in silhouette thereby distorting your facial expressions;
e. You should be aware of your background, so as to avoid any unnecessary distractions and/or clues as to where you might be when making your appearance. (You don’t want people to know you are lying in bed or hiding in a closet because it is the quietest place in the house.) I suggest a “blank-wall” behind you or use of a simple motionless “virtual background” (green-screen may be required);
f. Wear appropriate clothing (at-least from the waist up);
g. Try your best to look into the camera, (which should be raised to eye level and about an arm’s length away), and not at the picture of you or anyone else on the screen;
h. Know where the controls are to “mute/unmute” the sound, as well as how to turn the camera on and off;
i. Verify that you could easily read any documents that may be “shared” on the screen.
2. DON’T PANIC. A deposition is nothing but a fact-finding tool. You are asked to give oral testimony, which is then recorded (usually by a court stenographer) and memorialized in writing. When you first arrive in your “video” platform you will most likely be placed into a “waiting room” or “breakout room” until everyone is ready to proceed. You may or may not be able to speak with your attorney while you are in these rooms. In attendance, in the “main room” you will usually find the attorney for the Plaintiff, the Plaintiff, the attorney for the Defendant, the Defendant, the court stenographer, a videographer and maybe a translator. Of course, if there is more than one Plaintiff or Defendant, or the attorney has any assistants, the room can fill-up rather quickly. In most instances, you will not find other “witnesses” in the room (as your testimony might “taint” their testimony). Inclusion of other attendees can be waived by agreement between the attorneys. If you feel uncomfortable with another witness in the room you can ask that they be excluded; however, any parties to the action maintains a right to be present and cannot be excluded. Because this is a “video deposition” and each platform works differently, I can only generalize herein. You should note where all of the parties are on the screen, as their placement may shift at any time. In most instances the attorney asking you the questions should be “pinned” into place so that your focus isn’t shifted to any of the other parties in the “room”. Most set-ups permit for the “speaker” to be highlighted or “pinned” for focus. (“Speaker mode” can be unsettling for some, especially when they are the “speaker” and their own image appears and disappears.) If you have your screen set to “grid” the parties may all appear in equal-sized boxes on your screen. If given the option, find the setting you are most comfortable with.
3. Make sure you are relatively comfortable. You will usually be given an opportunity to call for a “break/recess” at any time it is needed (so long as it is not disruptive, nor causes unreasonable delay). However, once the questioning begins, you will not be able to communicate with counsel, or anyone else, regarding the content of your testimony, until the deposition is concluded (this includes texting or messaging one another). You will usually be instructed that you are to turn-off all telephones and other electronic devices. You will be asked to affirm that no one else is in the room with you or within earshot of your testimony. You will also be told that you are not to “record” the proceedings in any way and that all “off the record” communications will not be preserved. (The videographer is in the room to turn off the recording device for these “off the record” discussions.)
4. Once you are “sworn in”, (a requirement to assure that you are giving testimony with the knowledge that you are doing so under the penalties of perjury), the questioning attorney will usually begin, by giving you a brief explanation as to why you are there and the rules by which the deposition will be conducted.
5. You will then be asked questions, one at a time (hopefully), for which you are expected to respond. Unless there is an objection (and many times, even if an objection is made for the record) you are to give your response. Your responses should be given, keeping the following basic things in mind:
a. Think before responding.
b. Respond to the question being asked, not the question you wanted to be asked.
c. If you don’t understand the question being asked, Or you couldn’t hear the question clearly due to “internet-lag” or other extraneous noises, speak up and ask that the question be rephrased.
d. TELL THE TRUTH.
e. If you don’t remember, don’t make things up. Say you don’t remember or recall that which is being asked.
f. Guessing or speculating is a no-no. (Unless, directed to do so).
g. It is the questioner’s job to get the information out of you, so do not volunteer information not requested.
h. Wait until the complete question is asked, even if you can anticipate what the entire question will be, before you give your answer.
i. Answer a yes or no question with “yes” or “no”.
j. Answer with words, not sounds, or a shake of the head, as the court stenographer needs to record your verbal responses.
k. If a question requires a “choice”, and no choice is appropriate, say so before choosing an option.
l. Try not to answer questions with “absolutes” like “always” or “never”.
m. If asked to respond to questions requesting “everything you may know” about something, preface your answer with “to the best of my recollection at this time…”
m. Don’t assume anything. If you must, preface with a statement that clearly states those facts which you are assuming.
n. Ask for those documents or things which might assist you in answering the question posed, prior to giving your answer to the question. Most video deposition platforms have the ability to “share documents” and you should request the one you want to make reference to be placed on the screen. (Don’t take things out to refer to, and unless instructed to do so, Don’t start looking through your computer files or doing “google” searches, especially if you don’t want to open your “computer” up for future discovery and inspection!)
o. Remember, anything you say at the deposition can be used later, at trial, to “attack” your credibility.
6. Should you believe that you need to hire independent counsel, to protect your interests at the deposition or trial, and you are in New York or New Jersey, feel free to contact Glenn P. Milgraum, Esq. by calling 973-812-8660 or by email at: Disputelaw@aol.com. You should also feel free to review our website at https://www.glennmilgraum.com/ or link with me at WWW.Linkedin.com/in/Disputelaw to review any upcoming posts.
* Nothing herein should be construed as legal advice. You should always consult and/or retain a lawyer regarding any legal matter.