What Gets Lost on Zoom: The Real Cost of Remote Depositions

This alert examines when convenience is worth the trade-off, and when defense counsel may want to insist on something different.

Plaintiffs’ Preference for Remote Depositions

Videoconferencing is now a fixture of civil litigation. A 2022 American Bar Association (ABA) survey of nearly 2,000 members found strong majorities favored remote options for mediations, depositions, and hearings. Plaintiffs’ counsel are particularly incentivized to proceed remotely as they largely front the costs of litigation earning their legal fees on the back end after a successful settlement or trial. Reporting on proposed deposition rules found plaintiffs’ counsel strongly favored making remote depositions the default, citing savings in time, cost, and client stress. 

Reasons to Take the Deposition In-Person 

Defense counsel often uses depositions not only to preserve testimony, but also to assess credibility, evaluate demeanor, pressure-test a plaintiff’s injury narrative, and measure settlement risk. Accordingly, the practical impact of a remote deposition should be considered. A screen flattens the human dynamics of a deposition and lawyers lose the ability to read a room: from the shift in a witness’s posture to the flicker of concern on opposing counsel’s face. Witness credibility is also harder to project through a camera; courts and commentators have flagged that remote testimony makes demeanor harder to interpret.

Other considerations include:

1. Technical Difficulties: Unstable internet connections and audio lags disrupt the flow of questioning or impact counsel’s ability to timely object. Additionally, some witnesses may log in from a phone, negatively impacting their ability to view documents.
2. Improper Coaching: Without being in the same room, it is impossible to ensure the witness is not being improperly coached by counsel. 
3. Scripted Testimony: The witness may be viewing notes on their computer, or out of the camera’s frame, which the deposing attorney is unaware of. 
4. Witness Engagement: Witnesses may be less engaged in a virtual environment and distracted by off-camera or online activity. 
5. Lack of Civility: Counsel and witnesses may be more confrontational and less courteous when speaking through a screen than across the table, which can lead to a more contentious deposition. 
6. Settlement Opportunities: Remote depositions do not foster an organic opportunity for settlement discussions, like in-person depositions. Many settlement discussions occur when opposing counsels find themselves gathering exhibits and their belongings across a conference room table from one another or after a hearing on the proverbial courthouse steps. 

Conclusion

While plaintiffs’ counsel may push for remote depositions to save costs, protect witness credibility, or avoid a confrontational examination, defense counsel should consider the pros and cons before defaulting to remote depositions. A remote deposition may make sense for lower-stakes, out-of-state custodians or scheduling-sensitive witnesses. 

Defense counsel should triage deposition format at the outset of discovery rather than leaving format to scheduling inertia. For each material witness, counsel should assess whether the deposition is primarily informational, technical, medical, damages-focused, or credibility-driven. That assessment matters because remote depositions are often efficient for lower-stakes, out-of-state, expert, custodian, or scheduling-sensitive witnesses. Yet, certain cases call for putting people in the same room, and defense counsel should consider pressing for in-person depositions when practical.

1. ^ ABA News, “ABA survey: Most lawyers want options for remote work, court and conferences,” Sept. 28, 2022 (surveying 1,994 ABA members; 82% favored allowing remote court-ordered mediations, 88% remote depositions).
2. ^ Massachusetts Lawyers Weekly, “On deposition rule, advisory committee recommends ‘noticer’s choice,’” Nov. 10, 2023 (reporting plaintiffs’-side attorneys’ approval of a proposed default toward remote depositions and an online poll showing overwhelming preference against in-person depositions as the default).