As a part of the discovery process during a contested divorce, depositions may be scheduled in order to establish the facts of a case through a party or a witness while under oath. A deposition is a sworn out-of-court testimony that may be used at trial to impeach a witness, or “for any other purpose.”
Pursuant to Nevada Rules of Civil Procedure 30(b)(4), parties may stipulate that a deposition be taken by remote means.
When considering conducting a deposition of an adverse witness, either in-person, or by means of videoconferencing, there are benefits and downfalls to consider for each method.
Benefits of In-Person Depositions:
- Direct Face-To-Face Contact: During a highly contentious divorce, conducting an in-person deposition of an adverse witness will allow your attorney to better the witnesses’ attitude, demeanor, and body language. Additionally, when tensions are high during a divorce, there is more personal interaction when all parties and counsel are in the same room. An in-person deposition allows the deposing attorney to exert a higher level of authority when questioning a witness, and therefore be more effective during the deposition of an adverse party.
- Prevents Witness Coaching: When the legal teams and parties are at odds with one another, an in-person deposition helps prevent the opposing counsel from coaching a witness because everyone is in the same room. When depositions are conducted by remote means, there is nothing stopping opposing counsel – other than their own personal consciousness, court rules, and ethical rules - from feeding answers to the witness that is being deposed. It is hard to determine what an adverse witness and opposing counsel are actually doing if everyone is not in the same room.
- Elimination of Technological Errors: Common technological errors that can be experienced with videoconferencing technology such as video/audio lagging and internet connectivity issues are eliminated when depositions are conducted in-person.
Drawbacks of In-Person Depositions:
- More Costly: In-person depositions may be more costly because the client may be required to pay their attorney’s travel expenses and time.
- Safety: With respect to the recent tragedy that occurred on April 9, 2024, where two people were shot and killed during a deposition which took place in Las Vegas, Nevada - another factor to consider when deciding between an in-person or videoconference deposition is safety. When a divorce is highly contentious, or if there is history of domestic abuse and/or violence, an in-person deposition can potentially compromise the safety of all individuals involved/present during the deposition.
Benefits of Remote Depositions:
- Safety: Videoconferencing depositions ensure the safety of all individuals involved/present since all parties can attend from remote locations. This is an especially paramount factor during a contentious divorce.
- Cost-Effective: Videoconferencing depositions may cost less time and money as there are no travel time and expenses for the attorney.
- Convenient & Efficient: Counsels, their respective clients and witnesses, and court reporters can all be present for the deposition from their homes/offices. There is no need to account for travel times which can disrupt everyone’s day and/or workflow.
- Increased Comfort: Adverse parties and counsel do not have to be physically present in the same room during a remote deposition. This can be especially appealing when there is a high level of conflict, not only for safety reasons, but the level of comfort for all parties involved.
Drawbacks of Remote Depositions:
- Lack of Personal Interaction: Remote depositions increase the difficulty for a deposing attorney to assess the adverse witness during questioning. Additionally, it is easier for an adverse witness to maintain composure and feel comfortable during questioning if they do not have to be in the same room as the deposing attorney.
- Technological Errors: Technological errors such as video/audio lagging and internet connectivity issues are common and often experienced when using videoconferencing technology. This can disrupt and/or be distracting during the deposition of an adverse witness.
- Potential for Witness Coaching: Since adverse parties and counsel are not in the same room during a remote deposition, it is more difficult to determine when/if an adverse witness is being coached by opposing counsel. It would be easy for opposing counsel and their witness to communicate via text messages or handwritten messages during the deposition if all parties appear remotely.
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It is important to note that specific legal advice should be sought from a qualified attorney in Nevada when considering the benefits and drawbacks of in-person versus remote depositions. At Law Practice, Ltd., we will guide you through this process and do our best to always ensure the best outcome for our clients.