In March 2020, COVID 19 shut down the court system and most personal injury cases, along with the rest of New York State. Since then, we have started moving our personal injury cases forward. However, one of the challenges has been how to take depositions during the COVID 19 pandemic. We discuss here how we shifted to remote depositions over the last six months, and what you can expect if you give a deposition in a personal injury case during the pandemic.
Depositions Before COVID 19 – Same as It Always Was
A deposition is part of any personal injury or medical malpractice case. A party or witness gives sworn testimony before a trial about facts relevant to the trial. The depositions usually occur in an attorneys’ office with a court reporter and attorneys present. Before COVID-19, except in very unusual circumstances, we did these in person, or “live.” We often also videotaped the witness testifying live so that the jury could later see the testimony at trial.
COVID 19 and Depositions – We Can’t Go on This Way
COVID 19 changed everything. Now having strangers sit together in an indoor conference room for hours could seriously harm or kill them, or spread the virus. Things had to change, and they did.
We and other attorneys, and judges across New York State explored new ways to depose witnesses. The most obvious option was remote videoconferencing. The benefit of the remote deposition was self-evident. Everyone stayed home. There was no travel, no meeting of people in a single room, and therefore no risk of COVID 19 infection, or transmission.
Attorneys therefore started working out the learning curve and technology problems to get this done. Advances in technology made this transition easier than expected. However, there was some pushback. Attorneys liked sizing up opposing witnesses at deposition. This meant assessing their facial expressions, following up on questions sitting across from the witness, and watching how the witness reacted under pressure. We heard concerns that remote depositions prevented this.
Another concern was the exhibits. Before COVID 19, the attorneys brought physical copies of exhibits to the deposition. The court reporter would mark and hand them to the witness. That is not possible with remote depositions. We worked around this by pre-marking the exhibits in our office, and then scanning them to a Dropbox file or other file sharing device. We then shared the document on the screen with the witness during the remote deposition. It was a bit cumbersome, but it worked. Many attorneys across the state have told me that they have successfully used this process.
We have also continued with some live depositions. This requires that all parties, attorneys, and the court reporter agree to this, and also agree to abide by strict COVID 19 protocols. Some attorneys and parties have done this. Others will not, and we don’t blame them given the health risks involved. In medical malpractice cases, standing orders prohibit courts from compelling medical witnesses from testifying live. (See Administrative Order 88/20 issued by Chief Administrative Judge Lawrence Marks, May 2, 2020).
The live depositions that we have conducted by agreement over the last six months have gone well. However, once a witness puts on a mask, videotaping that witness usually lacks value for a later trial, because the mask hides many facial features that juries use to assess credibility.
The Courts Speak – Smile for the Camera
Some attorneys refused to appear for live or remote deposition. In Melkonian v. Albany Medical Ctr., (2020 NY Slip Op 32905[U] [Sup Ct, Albany County June 20, 2020, Baker J.]), a defense counsel claimed that he could not defend his clients unless he was physically in the same room with them. (Id. * 2-3). The Court disagreed and ordered remote depositions. But it also allowed defense counsel to be in the room with his clients during the remote deposition.
A similar result occurred in Johnson v. Time Warner Cable N.Y. City LLC, (2020 NY Slip Op 31592[U] [Sup Ct, New York County May 28, 2020, Kalish, J.]). This was a Labor Law § 240 case with significant injuries. Defendant asked that the Court delay depositions until it was safe to appear in person. The Court refused:
To delay discovery until a vaccine is available or the pandemic has otherwise abated would be unacceptable. It goes without saying that business as usual is no longer the normal. ….[a]mong other things this “new normal” means that it is no longer safe and practical for depositions to be taken in person, as was the default during the “old normal.”(Id. * 3).
The Court ordered remote depositions proceed by Veritext Virtual or a similar service acceptable to the parties.
Your Upcoming Deposition in a Personal Injury Case – Don’t Worry – Be Happy
You may have a personal injury case pending that is ready for depositions. Don’t worry. As discussed above, you can appear by videoconferencing to protect you from COVID 19 transmission or infection. All you need is a Skype or Zoom or similar application and a decent computer with a camera and sound. You should also talk to your attorney about where you will present your testimony and what your background will show when you appear. Your attorney will help prepare you to testify and handle the technical issues. Just remember to get rid of the pajamas and nachos.