Colleen Burke, James Hunter, and Kari Melkonian, Attorneys with Michigan law firm Collins Einhorn Farrell join Dr. Steve Wood to discuss the topic of virtual depositions. The group shares their experiences thus far with doing online depositions, including how they got started and what they’ve learned as best practices, plus things to watch out for. They discuss the advantages and disadvantages of preparing clients virtually and conducting depositions over Zoom and the importance of testing the technology beforehand and teaching the witness to identify and address any issues or distractions that can be dealt with in advance of the deposition day. They share how they remind deponents about the fact that these are formal proceedings, even when being done from the comfort of your own home, and what the protocols and procedures are that they need to adhere to. The panel emphasizes the importance of a good performance at deposition and how a bad deposition can result in a settlement offer being pulled or increasing exponentially. Lastly, the group weigh in on their expectations about whether jury trials would ever be conducted virtually.
Full Episode Transcript
[00:00] Steve Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences Inc. I am Dr. Steve Wood and today I have a panel here to talk to me a little bit about remote depositions in this day of COVID. We know that remote depositions or it could be coming something that are more commonplace, so I wanted to have a discussion with these three individuals kind of what their experiences are and with me I have Michigan attorneys Colleen Burke, James Hunter, and Kari Melkonian. All of them are from the law offices of Collins Einhorn and Farrell. How is everybody doing today?
[00:43] Kari Great, thanks for having us here today.
[00:46] James Great, thank you.
[00:48] Steve Good, I, I’m going to be anxious to hear from you each one of you guys because I’m sure each one of you has a different perspective and I wanted to mention too that like say you guys are in Michigan right now so we all know kind of Michigan is, as you said before, is leading the pack and not a good way as far as COVID goes. So I’m sure this is going to be interesting to hear your perspectives on this especially being from a state that is a lot more restrictive on how they’re going to do it. But first before I want to start, I just want to start with you Colleen and if you can just kind of give the viewers and the listeners a little bit of background about what your area of expertise is and and how you approach and what your approach is to law.
[01:25] Colleen Sure, my practice focuses on professional liability defense. I represent professionals such as lawyers, engineers, accountants in negligence or malpractice cases. I also represent lawyers and judges in misconduct and discipline matters. Um we, we, our firm does have a, a large professional liability department um which Jim is, is part of. Um I’ll go ahead and let him introduce himself and and give his background a bit.
[01:57] James Yeah, same, I’m also one of Colleen’s partners in the professional liability defense group. I’m also part of the commercial litigation and trucking and transportation defense group. Uh I think one of the interesting perspectives you’ll hear probably more so from Colleen and I is our experience with non-lay witnesses because we do do a lot of work on behalf of attorneys who, who might be more um familiar with uh Zoom and courtroom procedures, depositions, than a, a lay person might be. So it’s, it’s interesting and how I think you might hear from Kari who does a lot more work in other, other areas as well with how our preparation and strategies might be a little different.
[02:45] Steve Sure, Kari, let’s hear, let’s hear from you.
[02:47] Kari Yeah thanks Steve, um again thanks for having us here. Um I work in the general and automotive liability practice group. Um I also specialize in the defense of construction defect and injury claims. So essentially I do a little bit of everything: a lot of personal injury work, a lot of litigation between premises owners, tenants, landlords, commercial lease disputes and you know defects, people aren’t happy with, with their home renovation, new homes that have been built. Um so a lot of my caseload is unique um in the sense that I’m not dealing with one particular claim every day. I handle a number of wrongful death claims at any given time, deaths that arise out of a number of circumstances: motor vehicle accidents, construction accidents, slip and falls, you name it. Although I don’t handle the volume of legal malpractice claims that Colleen and Jim do, I have handled some in the past.
[03:54] Steve Good, so it sounds like each one of you kind of has a wide breadth so I’m sure each one you’re going to have something different to contribute to this, but I want to start with Colleen on this topic. Kind of what’s been your experience that you’ve found as far as doing remote depositions via Zoom?
[04:12] Colleen Actually had a, I’ll say a positive experience. Um you know Michigan like most of the, the country shut down last March um with and at that point we didn’t know when, when the return to in-person meetings and depositions would take place. So I think a lot of us just kind of um adjourned depositions with the thought that you know what, give it another 60 days, we’ll be back at it. Um but when that actually did not come to be um I like most everyone else you know just decided to throw myself into the Zoom world and see how best you know we could conquer it. Um and for the most part what I’ve found is that if you do the proper prep work—if you prepare your witness, you prepare your exhibits—it can actually go fairly smoothly. Um the biggest, the biggest thing that I’ve had to figure out is how to work with exhibits in the depositions. And for me what’s, what’s, what’s worked is that I’ve always uh prepared my exhibits maybe a few days beforehand and then sent them over to opposing counsel or, or sent them to, to the witness so that they have the opportunity to number one either look, look over them or print them off, you know whatever makes them comfortable. Um I’ve found that if you do something like you know a share screen situation that might be a little cumbersome, you might not get the exact same result that you, that you want. Um but again you know for me so long as, as the prep work is there um with the exhibits and with the witnesses, I’ve, I’ve had, I’ve had um successful experiences.
[05:49] Steve Yeah, Kari and Jim either one of you, how’s it been for you guys?
[05:54] Kari I agree with Colleen. Um you know in the beginning we were all of the mindset that you know this um pandemic and, and the related shutdown was not going to last for more than maybe a month or two. Um so a lot of um depositions, hearings and other scheduled events were just pushed out with the hope that we would resume normal activities um you know late uh summer 2020 or whenever. But obviously that’s not the case and as, as you mentioned at the outset, our cases unfortunately are increasing um so it’s going to be some time before we get back into in-person uh proceedings. So it has been an adjustment process for me. Um you know I, I have had to you know learn how to share my screen, learn Zoom. I agree it’s really important to share your exhibits in advance because if there are technical difficulties either on my end, the witness’s end, whoever, um the witness presumably and opposing counsel have hard copies or at least access to my exhibit so it’s not going to delay or interrupt the proceedings. So really the preparation is a little different you know because when we were doing depositions in person you have your, your stack of papers and you could you know show them to the witness right at the table and we don’t have that opportunity now. So I think it’s best to be to take a preventative approach and you know share everything ahead of time and you know that way there’s really no excuse as to you know someone not being able to see the screen or read it if they’ve already been provided the document.
[07:27] Steve That’s a good point and Jim, I actually wanted to, it brought up something that when Kari was talking I wanted to talk to you about it. Have you guys been prepping your witnesses all over Zoom or in doing your training witness trainings? Is that over Zoom or have you been doing any of it in person at all?
[07:42] James That’s a good point, uh it’s something I think Kari and I were actually talking about before showing up today is not, it’s not just that the depositions themselves are remote, most of our preparation is too. There was a little bit of uh in the summer we had a little bit of a break where we you know maybe had a couple in person meetings here and there where necessary or you know had some type of hybrid depositions where, with for one I, I had an expert witness um we prepped in person together following safe COVID protocols and had the deposition with other uh attorneys uh they appeared remotely, we were in person together. That helped a lot on our end um in defending the deposition. With prepping lay witnesses uh it’s, it’s a little bit more difficult and I, I think that when they’re, they’ve not been exposed to the, the court system before, maybe haven’t been deposed before, uh you lose some of that physical connection that with those face-to-face meetings that I think are pretty helpful in reducing stress, anxiety about the process. So it’s tough but again preparation is key and um and even before uh Zoom sometimes we did do those preparation sessions over phone uh or in other, other ways. So it’s case-by-case situation and as long as you feel comfortable, your client understands what you’re saying, and there’s only so much you can do sometimes too. So it wasn’t perfect before, it’s not going to be perfect with Zoom all the time. But generally I think there’s a not just with lay witnesses versus attorneys or other, other folks who might be more accustomed to the courtroom setting, expert witnesses versus uh lay witnesses there’s also a big difference there. Um with just a side note, you asked how, how is it going and I think it’s been good but it’s a mixed bag. And I have one, one situation we had a Zoom deposition uh a trucking accident, it was the plaintiff’s deposition, we didn’t have a choice we had to do it by Zoom. And just one thing that you miss sometimes is just being able to see the client move around the room, walk around, and it turned out that the client he didn’t disclose it, or the plaintiff didn’t disclose, that he had a limp or a gate issue and we couldn’t tell because we were sitting here like this. But it one of it came out later and we would have noticed it if we were in the room with him uh but we didn’t. And so we had to you know go through the rigmarole of uh rescheduling a dep to talk about it. So you know stuff like that you can miss out on uh hopefully that isn’t always the case and that’s kind of a one-off probably because of the disclosure issue. But uh interesting things like that that you just miss those maybe key physical observations that you can, you can make in those face-to-face depositions that you do miss here. But overall I, I think that this isn’t going away for a long time and so we better get used to it.
[10:47] Steve I think he brought about you brought up a good point when uh several good points that just made me start thinking was that you know one of the things that we miss is the human touch. And I know when I train a lot of witnesses that we do we’ve been doing a lot through Zoom and we’ve actually been pretty successful of doing it over Zoom, but I’m telling you I’m trying to and you guys know this too you know trying to train a witness or trying to prep a witness and be in the room with them and be able to see their mannerisms and be able to see the way they deliver their answers and just being in that room to give them the satisfaction and comfort before they go into depositions. A lot of them are just scared out of their mind, right? And being able to be there and work with them I just feel like sometimes being in person I much prefer it. You know I said this Zoom thing’s not going away anytime soon, but I do prefer to be in the room with the witness to try to help them but like I said it’s a lot more difficult to do that. So I think that was good and the other thing that you brought up too is kind of these, this point of not being able to see the, the plaintiff fully or have things that come up during the deposition that you weren’t sure of or weren’t aware of. Do you know you guys have any kind of horror stories? We know we’ve all seen now at this point “I am not a cat”, you know “I can assure you I’m not a cat,” I know we’ve all seen that. Have you guys had maybe not to that extent but have you guys had any of these horror stories that I’ve been hearing about people you know half in their, in their underwear or having some sort of I heard one guy had his meth pipe behind him in the middle of a, in a middle of a court hearing. Have you guys had any of these horror stories?
[12:18] Kari I, I try to um prevent those things at the outset to the extent possible. Um as Jim was talking about prepping witnesses, I, I deal with a lot of lay witnesses with, with different levels of, of education and experience. So I, I do a test Zoom run before a deposition um in, you know that way you know I don’t assume that anybody has, has done this before or they’re familiar with Zoom. So that way the, the witness or my client whoever it is understands the layout, understands there’s going to be multiple people on the screen, understands the dynamics, understands you know how to use the mute feature um and you know make sure you have an appropriate name on the screen. So um I think it’s helpful to do test runs especially with lay witnesses. I mean attorneys at least for the most part are pretty experienced with Zoom by now so there’s, there’s probably not as many issues with professional witnesses. Um but you know in, in terms of disruptions and things like that, there’s a lot of stuff we can’t control. I mean dogs barking, kids you know coming into the room, babies crying um you know I, I have neighbors who like to power wash and um chip trees during the day when I’m doing things and you know even when I close my windows I, I can’t control that.
[13:35] James Kari had a woodpecker incident if I recall.
[13:38] Kari I did yeah, I was in a three-hour deposition and there was um a woodpecker going to town on my siding for wht seemed like forever. Hadn’t uh heard this, this bird before and haven’t since knock on wood but um you know what can you do?
[14:00] Steve Yeah, Colleen what about you, you had any horror stories or any experiences in your day?
[14:06] Colleen Fortunately I haven’t had any horror stories but what I had, I had one instance where I was deposing a plaintiff in a legal malpractice case and you know he was sitting at home on his living room couch um obviously very comfortable with his surroundings um so he you know during the course of our two and a half hour deposition he made lunch, ate lunch. He then after lunch you know he decided that it was time for him to start smoking his cigar um and he did it like I said all from the comforts of his living room couch. He would sit back put his feet up um so I think that you know in terms of prepping our own witnesses, you have to remind them that this is still a formal proceeding. This is still something that you you know even though you may be wearing sweatpants and slippers, you still have to remember the purpose while you’re there. You have to present um you know a uh face um in support of your case. You know this isn’t something that that you should take lightly because you’re not at a conference room, you’re not sitting at a table with you know three court reporters or three attorneys rather than a court reporter. Um so that, that was my experience was just you know unfortunately you see some people that just maybe don’t um either appreciate or don’t take the, the proceedings the way that they are, are said to be.
[15:28] Steve I think that’s a, that’s a great point because I think one of the things that being in a deposition, allowing it to have it be a little bit anxiety-inducing in that at least it causes the witness to be a lot more locked in and focused right? And then the fact now as you said they’re sitting on their couch and that and as, as attorneys you know opposing counsel is going to try to get and I talk to witnesses all the time about this is that they’re going to try to get witnesses more in that casual conversation right? “We’re just a couple people hanging out asking questions no big deal” and then you get into that cadence of question answer and question answer and you start really getting into the flow and rather than fully listening to the question right before you respond. So I can see where you get if you get a witness who takes that approach and gets a little bit too relaxed in the comfort of their own home, they could very well actually make the case worse because they’re not focusing and giving the same answers they would have had they been in an actual room with the attorneys or even at least having you next to them too at the time of the deposition as well just so that it’s not quite as informal so that it allows them to remember hey this isn’t just a couple people sitting around talking right? This has real world implications for it.
So I want to talk, we kind of touched briefly on a lot of the things but starting with you Jim let’s kind of talk actually you know what Kari I’m going to give you give it to you first. Kari why don’t you talk to us about what are some tips you had kind of mentioned initially what some tips and tricks are that you use but kind of what are some tips that you have that others could use in preparing witnesses for Zoom depositions or just preparing yourself as an attorney for Zoom depositions?
[17:07] Kari Sure um we touched on some of this but you know as Colleen mentioned, it’s important to explain to your, your client, you know especially if it’s a non-professional witness who hasn’t been through this process before, that this is a formal proceeding. Um you know yes you were on a computer screen you’re in the comfort of your own home or your office or wherever um but you’re expected to act as if you would you know in, in a regular formal courtroom or conference room where a deposition is being conducted. You know occasionally our clients have to appear for court hearings and that’s a totally different level of preparation because you know you’re potentially addressing a judge. Um so don’t assume that your clients know to refer to a judge as your honor or judge. Um you know don’t call the judge by his or her first name. Um you know it may sound condescending but again you don’t want to just assume that your client has an understanding of courtroom etiquette beyond what he or she is observed on television. So um you know I, I try to go through those basic things and you know tell them how to, how to dress. You know no you don’t necessarily need to wear a suit but you, you should look presentable um you know so you know something that you would wear to church or something that you would wear to you know a funeral or whatever. You know just, just things like that so you’re, you’re not embarrassed um you know by your client’s behavior and um your, your clients don’t feel um like you didn’t adequately prepare them and you know just again basic understanding of technology. You know the client may only have a cell phone from which you know he or she can Zoom and it may not be a great connection. Um they need to understand how to hold it at the right angle so we’re not looking up their nose the entire time. Um you know just, just basic things like that that you know we all think we understand and we deal with every day but it is important to, to walk through some of the very basics with, with your clients and witnesses. And um you know as we were saying with depositions it’s going to take a little different preparation and perhaps more involved because you, you’re going to have to electronically organize your materials and you know it’s going to require some education, continuing education on all of our parts because as we all mentioned this isn’t going anywhere. So the, the number of depositions and proceedings on Zoom I think is just going to, to increase before it decreases so we have an obligation to um understand technology and evolve as things change.
[19:54] Steve Great what about you Colleen, kind of what are your approach what’s up some tips that you have?
[20:01] Colleen Well I wholeheartedly agree with what, what Kari was saying and the importance of, of you know prepping your preparing your witness making sure that they um appreciate the, the significance of the depositions. Um one thing that I, I always tell my clients that said that this is our time to present you to we want to you know set the best strongest foot forward um and show the other side that number one we take these allegations very seriously and that we’re here to present our defenses in a meaningful way. And um you do that by dressing appropriately you do that by um you know quieting the noises to the extent you can in your, in your house and and you, you do that by um again just uh just preparing yourself properly and completely for the, for the deposition. Um I, I think that the pr the prep work for a deposition uh is really ninety percent of the outcome. Um so if you properly prep your, your witness not only as to the questions that may be presented but the manner in which you, you answer them and how to conduct himself or herself on the Zoom, I think you’ll have a better result.
[21:10] Steve I think it’s a good point you brought up as well is that you said that the preparation and the deposition testimony is 90% of the outcome. I think that’s one of the things that we harp on a lot as well is you cannot overstate the fact of how important a fact witness is right? If a fact witness steps in it, gives a bad deposition, that settlement offer is either going to get pulled or now you know you’re going to trial or now the sun—oops that settlement offer just went up three times higher than what it was before because your witness gave a bad deposition.
[21:42] Colleen Oh absolutely and you know these are folks that don’t have the experience in being deposed or, or how to interpret the way a lawyer is answering a question and you’re absolutely right. Just a misunderstanding could send the deposition um you know in a direction that it wasn’t intended to go on so, so the more time that you’re able to spend with your witnesses before the Zoom call um I think that the better off you’ll be.
[22:04] Steve Great, Jim you got anything to add on top of that?
[22:06] James Yeah kind of a different angle, I think you mentioned have we had any horror stories yet? I think some of the horror stories are still to come, maybe we’re tuned to it. We do, we do a lot of professional liability defense work. Not only do we have to prep our clients for depositions but we have to prep our clients generally about what Zoom means for an attorney and other attorneys practicing have to be aware of um the, the privacy issues. Attorney client confidence and, and privilege issues that are associated with these Zoom deps or Zoom hearings or Zoom meetings preparing for a dep. Uh I see the little red light on right now that we’re recording this um you have to assume that any meeting is you know going to be stored somewhere. Uh the chat function on Zoom uh whether or not it’s a private message, make sure you know that. Tell your client not to be sending you notes during the deposition telling you, “Oh I definitely just stepped in it on that question I hope they don’t ask me this.” Um you know uh prepping an expert witness um over Zoom are you recording it? Is that, is that disclosable now under, under discovery? All of those things really need to have an extra level of attention in this era when you think about it. Before this year if you were in a meeting with a client were you ever videotaping it preparing for a deposition was there ever a you know verbatim contemporary record of, of what you talked about? Probably not. I mean that goes just not with client meetings, it goes to boardrooms too now. All these you know what is discoverable, what’s privileged really requires a new level of um analysis uh and day-to-day uh representation of clients. So when we say how do we prepare what are tips for preparing make sure you and your client are aware of, of any privilege issues ethics issues that, that may apply to however you’re conducting a Zoom deposition or, or hearing or prep session anything like that. So those are the horror stories I’m most concerned about. So uh i mean we haven’t seen a lot uh I think uh Colleen and I looked into this a month or so ago you know to see what was out there around the country with maybe motions to compel to Zoom itself uh or uh for you know recordings or hearings or anything like that. I don’t think there’s a lot out there yet but it, it will come it will come.
[24:44] Kari It will come. I agree, I agree.
[24:46] Steve I think we could have a whole nother conversation as well about the emergence of these Zoom trials. I know I’m not sure if Michigan has any right now or if anybody are coming up but I know we’re starting to see some here in Texas that there’s, there’s going to be Zoom trials and then there’s a whole lot of things around that as well about our witnesses are, uh are jurors actually be paying attention the whole time and how do you present witnesses who’s going to show up are you going to have a difference in demographics based upon it being Zoom versus being in person? And like you said there’s a lot of stuff out there, a lot of stuff unknown going forward in the future as far as how trials are gonna present and going forward just from like I said the deposition all the way up through the trial phase. Have you guys gotten a sense of any of that in, in Michigan at all?
[25:31] James I’m going to jump in there and Kari is probably the best equipped [to] answer she’s really connected with the local courts here. But you’re in Texas, we’re in Michigan, there’s a great article I don’t know if I can even talk about other publications here but in The Atlantic coming out next month that focuses on Texas and Michigan and, and access to justice issues Zoom hearings Zoom depositions. Uh and I will say in Michigan uh obviously we, we were hard hit in the beginning but something a lot of people didn’t know is the courts had already licensed Zoom before COVID to make this transition. So this was coming no matter what and uh Chief Justice um McCormick said it right where this is you know this change was thrust upon us it’s not necessarily what we wanted but uh when we wanted it but it was, it’s what we needed you know and so uh like you said how this is gonna change jury, jury makeup, access to justice issues uh it’s going to be really interesting but I don’t think it’s going away anytime soon especially for routine depositions. I hate saying routine because no deposition is routine but uh you know settlement conferences uh status conferences I can, I can see this being the norm forever essentially.
[26:48] Steve That’s a good point yeah Kari what have you heard from Michigan in your area?
[26:54] Kari Yeah right now there, there’s still quite a bit of resistance at least from the attorney standpoint to handling jury trials by Zoom and it’s, it’s very understandable for a lot of the reasons that you mentioned Steve. You know we don’t have any control over jurors beyond their screen. You know when jury trials are held in person you know they’re, they’re required of course to report in person to the jury assembly room in each courthouse until they’re seated um for a particular trial and then from there the, the judge’s staff has almost complete management control over the jurors. You know they’re, they’re in a jury room that’s assigned to that particular judge they can’t leave the room on breaks or during deliberations without somebody knowing about it and they can’t use their cell phones they can’t communicate with outside sources so what, how do we manage that um remotely? And the answer is I don’t think we can. So at least now there has been some movement to try to encourage jury trials at least civil jury trials on and you know again not insignificant because all cases are significant but on some of the smaller cases some of the cases that may take a day or two to try don’t have expert testimony um you know things that aren’t terribly complicated or time consuming. But I’m personally concerned about that because you know I don’t know that I can be as effective as a litigator at my desk or in my living room whereas I, I feel much more confident and a better advocate in a courtroom. Now there are some um courts in particular family courts that are doing bench trials and you know other evidentiary hearings via Zoom because it’s a little more amenable to that when you’re not dealing with juries. Um the biggest issue that courts are facing right now is the criminal trials because criminal defendants have constitutional rights and we have a lot of people who have been sitting in jail for over a year or longer waiting to have their day in court and you know we have speedy trial rules and things like that that have kind of been you know pushed aside because judges hands are tied. Um you know Oakland County which is one of the larger counties in Michigan in where we, we do a lot of practice, they were scheduled to be resumed criminal trials in, in March uh but because of the in-person criminal jury trials but because of the, the spike in cases the um state court administrator’s office pushed him back into what’s called phase one um where there are no in-person jury trials and you know we, how can we expect jurors to feel comfortable reporting um you know I a lot of the courts have taken all the precautions they can there’s plexiglass there’s distancing but you know can we compel members of the public to come in and serve as jurors um under the present set of circumstances? So there’s a, there’s a lot of variables um there’s a lot of unanswered questions and, and as we’ve all said this isn’t going away um even when numbers level out so it’ll be interesting to see but um I don’t see us doing remote jury trials anytime soon.
[30:22] Steve That’s good yeah I’ll be interested uh Jim to to hear about that Atlantic article you’re talking about sounds like it’d be interesting especially from being in a Texan and looking at it.
[30:30] James Yeah focused on our two states it’s, it’s interesting I mean you can read it and you know one point Kari just brought up is you know some of tur some attorneys uh highlighted in that article you know are refusing to try cases remotely uh and the, the flip side of that is well does a virtual setting maybe level the playing field, take some of the theatrics out of it and make people focus more on just the law and the facts? So it’s very interesting. So I don’t know.
[31:02] Steve I don’t know we might need to have you guys back on for another episode just to talk about all of that. Uh but just to wrap this up uh Colleen so if if people need to get a hold of you, if they want to ask you questions, if they have anything that came up during this podcast, how do I get ahold of you?
[31:20] Colleen Um they can reach me via email um my email address is colleen.burke, c-o-l-l-e-e-n dot b-u-r-k-e at ceflawyers, it’s charlie edward frank lawyers.com.
[31:36] Steve Great. Kari, how about you?
[31:38] Kari Yeah, I can also be reached um via email. My email address is kari, k-a-r-i dot melkonian, m-e-l-k-o-n-i-a-n at ceflawyers.com. I am also on LinkedIn and of course anybody is welcome to call me. Um sadly I have to check what my uh phone number is here because I’m not giving out my office number too often these days, but that is 248-351-5436.
[32:09] Steve Great. And James, how about you?
[32:11] James Yeah uh james.hunter at ceflawyers.com. Also on LinkedIn and uh our, our firm’s main number if you want to get a hold of any of us is 248-355-4141.
[32:25] Steve Great. I appreciate you guys having you on. This has been another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Have a good one.
[32:33] Colleen Thank you.
[32:34] James Thank you.
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