A Court Reporter’s Guide to Remote Depositions
A guest post by Sara Giammanco, CSR No. 14292
As I write this, the state where I live, California, has been under statewide shelter-in-place orders for five months. In a remarkably short period of time, the day-to-day life and business culture of a state with nearly 40 million people has been utterly upended – with no end in sight. All types of companies, from Apple to corner taquerias, have been forced to reengineer everything about how they operate to accommodate the effects of a virus that, as of six months ago, almost nobody had heard of. These changes affect all aspects of the legal industry including court reporting and stenographers. More specifically, in-person depositions have now become remote depositions, which presents both new challenges and new opportunities.
As a court reporter, our basic function is to ensure the accuracy and admissibility of testimony and evidence offered during legal proceedings, particularly depositions and hearings. To do this, for at least the last century, stenographers were always in the same room, face-to-face with the person providing the testimony. Thanks to COVID-19, that is no longer possible. Court reporters are now working remotely, capturing the record online. How are we doing it? How’s it working out?
First, I’d Iike to share an unexpected but appreciated benefit. As a court reporter, one of the biggest day-to-day challenges for me has always been travel. Simply getting to and from depositions has always come with an enormous time commitment. With remote depositions, I suddenly have that time back. Not only does this cut down considerably on the stress of the working day, and shorten it, but it also frees me to take jobs regardless of geographical location. Once the commute is removed, court reporters can – and do – work anywhere and everywhere. This sudden flexibility has been a game-changer for me and many others I’ve spoken with.
However, there are tradeoffs, most of which relate to the limitations and occasional lapses inherent in remote environments. Even the most carefully set up deposition in a home office can’t compete with a professionally designed and staffed office conference room. This fact can occasionally affect the technology that makes remote depositions work.
First and foremost is the simple reality that because you’re not in the same room with the attorney and witnesses, it’s more difficult to watch them, which is often a court reporter’s ace in the hole. Any experienced court reporter, while at work, “watches the room.” We develop a sixth sense for when someone is going to jump in and talk over someone else, or when an attorney is about to object to a question. The ability to anticipate and deal with events like this is the hallmark of a skilled court reporter. By learning the behaviors and speaking styles of each participant, we can pick up nuances that enhance and support our notetaking. But when working remote, picking up on these cues is extremely difficult and sometimes impossible.
Similarly, court reporters are often also mouth readers – we rely on the shape of a speaker’s lips to decipher unclear words when he or she is speaking. When witnesses are masked, this too, is impossible. I’ve been seeing more witnesses participate in remote depositions from their attorney’s office, where masks are required. As such, court reporters have had to develop and master ways to compensate for being unable to rely on watching a speaker’s mouth during both remote and in-person depositions.
A more prosaic concern that frequently arises is the quality and, therefore, the speed of the Internet connection being used to conduct the remote deposition. On the court reporter’s end, it’s a good idea to use a wired connection when possible – i.e., an Ethernet cable – to ensure the fastest, most stable performance. However, as court reporters we have no control over the speed and latency of the connection at the site of the deposition or for each participant. Sometimes this means that depositions which normally (whatever that means now) would be quick and straightforward require extra editing due to interruptions in the connection. Interestingly, however, as time has gone by and the legal profession in general has become more skilled at remote depositions, this problem seems to be abating.
Additionally, the entire remote deposition is conducted through a virtual platform such as Zoom. As such, I recommend becoming as knowledgeable and skilled as possible with the platform you’ll be using. Many remote deposition providers offer deposition technicians who provide invaluable help and support. Still, as a court reporter, the more you know, the better you’ll be at resolving technical difficulties. Whenever someone resolves a problem, take note and learn so you’ll be able to do it yourself in the future. Over the long run, this means more time spent on the record and less time fiddling with technology.
In remote depositions, quality audio is paramount. While I can control everything on my end, I cannot control the clarity, volume or purity of the other participants in the remote deposition. There are occasional instances when voices drop or crosstalk makes it unclear who said what. But the solution is straightforward – I interrupt and ask for clarification. Most attorneys are very understanding and accommodating as they want the record to be correct, too.
Also interesting is that remote depositions often result in more violations of protocol than would occur in a face-to-face setting. This includes behaviors like attorneys eating, answering phone calls, having side conversations and so on. Apparently, and understandably, when a remote deposition is being conducted by an attorney from his or her own living room, they feel as if they can “get away with” things they otherwise couldn’t. The solution is the same for audio issues – I interrupt the proceedings and point out that the behavior is making it challenging to hear what’s being said.
The final challenge presented by remote depositions is handling exhibits. Marking exhibits virtually takes a little more time than doing it in a conventional deposition, and if there is a discrepancy between how an exhibit is labeled (such as “Exhibit A”) and how it’s introduced by the attorney (“This is Exhibit 1”), confusion can ensue. The best solution is to keep track of exhibits as they’re introduced. If this isn’t possible, then either during breaks or after the deposition’s over, work with the attorneys to clarify any exhibits about which you’re unclear, and make sure you have them straight before everyone exits the virtual proceeding.
Lastly, from the ounce-of-prevention-is-better-than-a-pound-of-cure perspective, many issues can be headed off by making a series of statements to everyone involved just as the deposition begins. Think of the cabin crew on a flight reminding everyone about the rules onboard while the plane taxies – that’s you. Specific issues it pays to address include the need for photo ID (which allows those who need it to go get it before the deposition actually begins); a discussion of the options for marking and sharing exhibits in a virtual environment; and a reminder of the critical importance of avoiding crosstalk in a virtual environment. These admonitions can prevent the need to repeatedly interrupt the deposition to clarify what has someone said.
As time goes on and the new normal of COVID-19 continues to take shape, additional techniques for mastering the remote deposition will undoubtedly emerge. The tips above are an excellent start and, most importantly, a way to help prevent problems before they arise. In a deposition, the lawyers are dealing with what has already happened. But as a remote court reporter, your life is easier if you can focus on preventing certain things from happening in the first place. The result is a smoother deposition, issues that are handled well when they do arise and remember – limited or no travel!