Pajama bottoms and fuzzy slippers. Travel time and money saved. Who isn’t lured by these and other benefits of virtual witness interviews and depositions? While attorneys and witnesses have adapted to pandemic discovery, virtual meetings may not be ideal going forward. Risk managers should be aware of the drawbacks and limitations of virtual discovery and factor them into decisions about when and if to conduct virtual litigation meetings.
Granted, for much of 2020 and 2021, the litigation teams had no choice but to proceed with virtual interviews and depositions. However, in the wake of vaccines and safety precautions, increased possibilities are emerging. Options may include hybrid interviews and depositions where the witness is in a room with the risk manager or attorney while other attendees are virtual.
One advantage often touted is the cost benefits of virtual meetings and depositions of eliminating travel expenses. Another advantage is eliminating for travel times.
However, an uncooperative witness may find it easier to remain obstinate in a virtual interview or deposition since they are not sharing a table or room with counsel. Experienced litigation attorneys read body language and find ways to engage witnesses in ways that are not available in a virtual setting. Risk managers need to be aware of such potential drawbacks and risks of virtual depositions, interviews, and deposition preparation meetings.
The following considerations should be made when deciding when and how to proceed:
- Ultimate format of the deposition or trial
- If the witness is preparing for an in-person deposition, an in-person prep meeting is more useful. Alternatively, if the deposition will be virtual, then the prep meeting and especially practice run should be virtual.
- Virtual hearings and bench trials have resumed in many parts of the country and some courts have resumed jury trials. The defense team should ensure the witness is familiar with the ultimate format to be used by having prepared for it in the same manner.
- Urgency of the meeting
- If the meeting is about an event that just happened or the parties are under a fast-paced scheduling order, the priority may be to have a virtual meeting that can be scheduled quickly and does not involve travel, rather than having an in-person meeting later.
- Personality and circumstances of the witness
- In the event of a technical or other issue during a virtual meeting is the witness able to problem solve without getting flustered or overwhelmed? Is the witness analytical and independent? Witnesses already feel a lot of pressure and virtual meetings add the stresses of hoping the technology works and that human and pet family member do not interrupt.
- Witnesses who thrive while working long hours under pressure may be largely unfazed in a seven-hour deposition, whether remote or in person. Problem solvers and decision makers may not get frazzled when technology malfunctions.
- Even hours into a virtual meeting, does the personality of the provider enable him or her to remain highly attentive?
- The witness’s circumstances cannot be overly emphasized. Especially during the pandemic, health care providers were stretched by their own personal health concerns, long work days, stressful environments, and juggling personal and family responsibilities. Throwing litigation into the mix was not a welcome addition. Some found deposition preparation easier to squeeze in when they could do it from home or another familiar setting. It is important for risk managers and defense counsel not to focus so much on the litigation that they lose sight of the personal side of defending medical providers.
- Is the provider is in a setting where he or she is able to maintain focus in a virtual setting for a long period of time?
- Build in breaks during extensive document review even when done virtually. Providers who are used to working long shifts with minimal breaks sometimes insist on continuing in depositions or deposition preparation without breaks, but doing so can compromise their acuity in a setting that is foreign to them, in this case an interview or deposition.
- Expected cooperation or lack thereof from the witness
- Does the witness understand the process? How reluctant or scared is he or she? A shy or standoffish personality may be exaggerated in a virtual setting. Or for other reasons, the risk manager and attorney may find it difficult to connect on a personal level in a virtual litigation setting.
- With a view of only a witness’s head and shoulders, the attorney may not see telling body language, such as shifting uncomfortably in a chair, wringing hands or referencing notes on the screen or desk.
- Volume and nature of records to be reviewed
- Reviewing documents can be more time consuming via screen sharing so virtual meetings are less productive when there is a large number of records to review. Send materials to the witness ahead of time. The key text in the materials to be presented via screen share can be highlighted ahead of time.
- Virtual depositions with voluminous exhibits work best when the exhibits have been shared with opposing counsel and the witness beforehand. If doing so compromises defense strategy, then exhibits may need to be abated or a virtual setting may not be best.
- Practitioner’s level of involvement and exposure
- Providers with limited involvement in the care may be better suited for virtual meetings due to the anticipated duration of the meeting and volume of records to be reviewed.
- Providers with less exposure might have less anxiety about the litigation and be more open to a virtual setting.
- Witnesses familiarity with litigation and the discovery process may also impact their participation and focus in a virtual setting.
- Characteristics of opposing counsel
- If depositions will be virtual for one party, then counsel may insist they are virtual for both parties so that everyone is on equal footing. If opposing counsel is uncooperative, then the defending counsel should obtain agreement before deciding on virtual or in-person depositions.
- In cases with experienced, trustworthy, and cooperative opposing counsel, the parties can work together to solve technology and logistical hiccups that often arise in virtual settings.
- Technology and private, quiet space available to the provider
- Ensure that the provider has a private and quiet space for virtual interviews and for the deposition. Participating in a deposition prep meeting from the nurses’ station, for example, is not appropriate. Nor is participating in a shared office with others around.
- Waiver of attorney-client privilege arises if third parties are present and overhear the witness’s interview. Also, a health care provider must take precautions to make sure other patients and their families do not overhear litigation-related conversations.
- If it is not possible to avoid interruptions, make sure the witness is prepared for their potential. For example, it is better for the witness to know to pause a meeting and deal with the interruption than continue without being able to focus. Likewise, make sure the witness knows they can have water or a drink with them during the deposition and can take a break whenever needed.
- If the virtual meeting has multiple participants and screen sharing, be certain the witness knows how to change their view so that they can still see the shared screen and the attorney asking a question.
- Even well into 2021, some witnesses still attend their video meetings or depositions only to find that their computer does not have a camera or they do not know how to turn it on.
- Level of tension anticipated
- If the opposing counsel is difficult to work with or the witness is expected to be antagonistic, then a virtual setting may be an unwelcomed exacerbation.
- Lengthy virtual interviews and depositions may be more exhausting to some people than the in person equivalent due to the strain of staring at the computer for extended periods.
- Litigation budget
- Virtual interviews can be a cost saving because there is no travel or parking expenses. However, consider the costs for preparing exhibits for a virtual deposition or interview, which often takes much longer than for an in-person deposition.
- Also, cost saving on the travel must be balanced with the overall impact on the value of the case. The previously discussed drawbacks of a virtual interview and deposition may outweigh the benefit of eliminating travel expenses. For example, a witness who is flustered by the technology during a deposition may ultimately increase the cost of the defense more than the expense of traveling.
Virtual interviews and depositions can be a cost-saving and already feel natural to some providers and attorneys. Meeting in person can mean the participants are behind masks whereas virtual settings allow unmasked conversation. However, some personalities thrive in virtual settings while others do not. Some witnesses have the stamina to engage in an extended virtual meeting while others benefit from multiple shorter meetings. Recognizing these differences is key to maximizing effectiveness in a virtual setting or knowing when to wait until an in-person meeting is feasible.
Melanie S. Taylor is a partner with Bendin, Sumrall & Ladner, in Atlanta. Taylor assists her health care clients with risk management, best provider/patient relationship practices, pre-suit investigations, and represents them throughout all phases of litigation. She enjoys serving in the community, raising daughters, and practicing martial arts.