Aron U. Raskas shareholder with Gunster, in Miami.

A recent article on these pages outlining helpful tips for remote depositions identified a problem concerning the use of exhibits during such depositions. The article suggested that "exhibits must … be organized and distributed in advance by the attorney conducting the remote deposition" because "waiting until the last moment to present exhibits is not advisable and will  cause delay and confusion."

In fact, with appropriate software tools that problem is surmountable and a tactical advantage may be preserved. With such tools, exhibits can be held back and revealed to the witness and opposing counsel only when they are ready to be used. And this can be done efficiently, effectively and without delay.

The software program that I have now used in multiple depositions is exhibit share. It takes but little time to master, and it works very effectively. It is the place where exhibits are preloaded and then, during the deposition, marked and shared with the other participants. But only when you decide to share them.

Each participant in the deposition receives access to exhibit share. The extent of that access, however, is granted and restricted based upon each person's role at the deposition.

Each side has its own "private" folder. This is where the intended exhibits are premarked, uploaded and stored. Because the folder remains private, the witness and opposing counsel have no opportunity to see in advance what materials will be used during the deposition. When counsel is ready to use the exhibit, it is marked and introduced by selecting it from the private folder, typing in an exhibit number and publishing it as a "marked exhibit."

At that moment, the same document appears in the marked exhibit folder, which is public and accessible to everyone who has been credentialed and has logged in to the exhibit share website. Everyone—the witness, opposing counsel and anyone else—may then view the exhibit and even download it. This gives each individual the ability to review the document at their own pace and focus on whatever parts that person wishes.

While everyone then has their own access to the exhibit, there is another step that is important and helpful: once the exhibit has been marked (waiting until then is important, as described further below), someone working with the examining attorney may share his or her screen, using the "screen share" tool on the Zoom platform.

This makes the exhibit visible as part of the Zoom conference, so that everyone is looking at the same section of the document at the same time. The examining attorney can then focus attention on the relevant portions of the exhibit that relate to the examination, by magnifying sections, drawing on it or using a pointing tool available in Zoom. Moreover, displaying the exhibit on the Zoom conference screen better ensures that the witness will be looking toward the camera, rather than at a second screen where he or she may be downloading the exhibits from exhibit share.

When using a program like exhibit share for the first time, particularly with a paralegal who will be in another location, it is a good idea to undertake a trial run before the deposition. Our vendor was willing to set up a demo session for us to do that. Also, to avoid last minute technical difficulties, the vendor should be asked to set up a trial run with the witness at least a day in advance of the deposition.

To maintain the confidentiality of your exhibits until you are prepared to use them, it is important to refrain from sharing your screen (or having your paralegal share her or his screen) until you have only the already marked exhibit on the screen. Otherwise the materials in your "private" exhibit share folder might be disclosed before you are prepared to use them.  Further, understand that it is everything on your screen that will be shared. So remember to close all other programs, such as Outlook, Word and everything else.

The world has certainly changed, and lawyers are adapting like all others. Fortunately, the skilled use of tools such as this one promotes the effective questioning of witnesses, even remotely, and without compromising the techniques that make depositions most effective.

Aron U. Raskas is a shareholder in the business litigation practice at Gunster in Miami. He focuses on business disputes and the defense of professional liability matters. Contact him at [email protected].