The pandemic not only brought about this new wave of technology within the law, but
forced lawyers to use these new opportunities in order to continue serving their clients and the
court. The ability to conduct a deposition through electronic means is outlined in the Federal
Rules of Civil Procedure (“FRCP”). FRCP Rule 30(b)(4) states directly that the parties may
stipulate, or the court may order, that a deposition may be taken “by telephone or other remote
means.” [1] When it comes to practicing law via “remote means,” Zoom is by far the most prevalent
technological advancement in today’s legal profession. Zoom’s service is a secure video
communications platform that offers the ability to host meetings, chats, webinars, and other
online events with features such as HD audio and video meetings, built-in collaboration tools,
and team chat conversations. [2]
Many courts across the nation have established rules and guidelines for lawyers to follow
when incorporating Zoom into their practice. In early 2021, a court set forth protocols
specifically for recording depositions taken via Zoom’s platform in Schaeffer v. City of Chicago. [3]
The protocols established can help other practitioners, even those outside of the Schaeffer court’s
jurisdiction, understand how best to approach depositions being taken through Zoom. Of
particular interest, Schaeffer instructed that the recordings would pause when parties asked to
speak off the record, with oral announcements being made both when the recording is paused
and restarted. [4] In addition, after the deposition is completed the party who made the record “must
provide access to the recording on a password protected website to all parties” and at no charge. [5]
This is important as it both allows parties to review the footage after the deposition and places
[1] Fed. R. Civ. P. 30.
[2] ZOOM, https://explore.zoom.us/en/products/meetings/ (last visited Oct. 3, 2022).
[3] Schaeffer v. City of Chicago, 19-CV-7711, 2021 WL 3673848 (N.D. Ill. Jan. 25, 2021).
[4] Id. at 1.
[5] Id.
this responsibility squarely on the party taking the deposition. A final note from Schaeffer’s
protocols that is worth highlighting requires that the deponent’s appearance or demeanor is not
distorted or altered in any way. [6] With several features that can alter the appearance of someone in
the video, this rule ensures accuracy and transparency throughout the deposition. This is an
important safeguard to technology that lawyers must keep in mind when utilizing new video
systems.
A recent article published to the State Bar of Texas’s CLE on Advanced Intellectual
Property Law provided additional recommendations when it comes to being a ‘virtual lawyer.’ [7]
First, the article advised that to ensure a successful remote deposition, it is important to plan well
in advance and test the setup and equipment that will be used beforehand. [8] Are the mics working
effectively, do I have proper lighting, and is the video from my camera providing good quality
while set at a good angle that is safe from potential distractions are all important questions that
should be answered in advance. [9] It may also be beneficial for lawyers to invest in multiple
monitors, allowing each screen to be responsible for different tasks throughout the deposition.
Preparation for the virtual deposition should also include scheduling a brief test session a few
days in advance of the deposition that includes all planned participants. [10] This would allow
everyone to double check all their technologies and connections to ensure a smooth experience
the day of the deposition, when time will be especially valuable. The article noted that lawyers
on both sides should remember to come to an agreement from the witnesses and parties that the
everyone will refrain from reading or checking any emails, texts, phone calls, or voicemails
during the deposition. Not only would this help prevent any unnecessary interruptions or
[6] Id.
[7] II. VIRTUAL HEARINGS AND TRIALS, 2021 TXCLE-AIP 5-II.
[8] Id.
[9] Id.
[10] Id.
distractions in an environment that makes it easy for both, but further promotes a smooth
deposition. This agreement should be easily made and would allow all the lawyers to come to a
quick agreement on how the deposition will proceed.
The article concluded by emphasizing that even though virtual hearings may seem more
casual, it is important to remember that at the end of the day it is still a formal legal proceeding.
As a result, the process deserves respect, and all parties should treat it with the proper authority.
Continuing to wear business professional clothing, refraining from being overtly rude to other
attendees, and remembering to mute your mic/turn off your camera when appropriate are simple,
but important ways to ensure that legal process continues to receive the respect it deserves. These
hearings are still the foundation of our legal system, even when everyone may be attending from
their dining room table.
