COVID-19 and Questioning by Video
Before COVID-19, witnesses could be examined in-person or remotely using video technology. While the use of video was not common, it was not unusual either.
While the pandemic has shut down all but emergency court applications because of social distancing, questioning can still proceed by video conference. This will be the case even after the pandemic ends.
This article does not address the application of the Alberta Rules of Court to remote questioning, nor does it address what happens when the opposing party does not agree to questioning by video.
You may want to review the Alberta Protocol for Remote Questioning available on the CBA-Alberta website. The protocol was produced by a working group of Alberta practitioners and is not mandatory, but it does contain valuable suggestions to improve the functioning of remote questioning.
Put it on the Record
Even if you agree with opposing counsel to proceed in this fashion, it is recommended that everyone confirm their consent on the record.
At the start of the examination, each participant should confirm that they agree to proceed by video and that they will not later raise objections to the use of the transcript. This will ensure that counsel can use the transcript of the examination without unnecessary delays or incurring the costs of applications to resolve any misunderstandings.
More Tips to Successful Video Questioning
Once all parties have agreed to proceed by video, here are some tips to make your remote questioning a success:
- Whether you are looking at Zoom, Skype, Teams or proprietary systems used by court reporting services, familiarize yourself with video conferencing software and what it can do for you. Understand the features and limitations of each option and choose the one that is right for you. We have put together this resource to help you learn more.
- Check your internet connection speed and bandwidth. Test the speed of your system with the Speedtest app, available as a free download from the App Store and Google Play. Zoom suggests at least 800 kilobits per second (kbps) for high quality video and recommends 1.5 megabits per second (Mbps). Teams suggests at least 500kbps and recommends 2Mbps. If your internet connection needs improvement, contact your internet service provider.
- When logging in to a remote questioning session, use an ethernet cable rather than Wi-Fi to connect your computer to your network. Your signal will be stable, faster and more secure.
- In advance of the meeting, make sure everyone understands how to log in, how to turn on their microphones and cameras, how and when to mute themselves, and how to share documents on their screen.
- Use a headset rather than your computer’s speaker and built-in microphone. Your sound quality will be much better, extraneous noises will be significantly reduced and you will protect the confidentiality of the other participants’ comments from anyone within hearing range.
- Share your proposed exhibits in advance with everyone, including the court reporter and remember to number all the pages. If the court reporter will be marking exhibits, be sure to provide them with copies in advance. Confirm with the court reporter prior to the questioning what else they will need from you.
- If you will be using a lot of acronyms or unusual names, circulate a tip sheet in advance. This will avoid a lot of confusion and wasted time.
- Anyone speaking during questioning must have their camera on so that others, including the court reporter, can easily identify who is speaking. Your trial judge will be particularly grateful for this if you do any read-ins at trial.
- Ensure you have an agreement in advance, regarding the presence of others in the room where the witness is located. Non-parties are not entitled to attend questioning, but in some circumstances the parties may agree. A witness may require technological assistance, for example, which may justify the presence of a third party.
- All participants should state and spell out their full names at the start of the examination.
- Speak slowly and clearly and ensure parties give audible responses rather than nodding their heads. The court reporter must hear everything accurately. If they do not, they may have to interrupt repeatedly which could disrupt the flow of your examination. This is a problem when everyone is together in person and doubly so in a remote questioning session. Also, ensure that you do not talk over others.
- Always test your equipment and do a practice run. Position yourself as you would during the examination. Speak at a normal conversational level and think about any background noises that might interfere with the examination (open windows, air conditioners, TV’s, proximity to others). With multiple participants in different locations, all using different computers and operating systems, this is critical.
Video Technology – Inexpensive and Readily Available
Video technology has made remarkable advances in recent years.
There are multiple software options that run on all operating systems, computers and tablets. What used to be expensive, difficult and the domain of only the few, is now available to the entire profession.
Technology used to be an obstacle to successful video questioning, but it has now become an asset.
Written by: Len Polsky, Manager, Practice Management