BEYOND THE BASICS: WHAT LITIGATORS HAVE LEARNED ABOUT REMOTE DEPOSITIONS SINCE THE COVID-19 SHUTDOWN
By: James B. Drimmer, Esq.
U.S. Legal Support
At the outset of our country’s March lockdown in response to COVID-19, court reporting vendors quickly introduced remote deposition technology into their service offerings. Lawyers were initially skeptical toward embracing remote depositions as part of litigation’s “new normal.” Once it became apparent that this pandemic was wreaking havoc, causing courthouse and law firm closures with no definite end in sight, the early tepid response to this alternative turned into widespread adoption.
Acceptance of remote deposition technology, however uncomfortable at times, has advanced the legal profession light years in a matter of months. As a new round of social and economic shut down begins in response to the recent resurgence in Coronavirus cases, lawyers are better prepared to deal with depositions remotely as this manner of discovery has become ubiquitous.
Here is what we have learned since March:
The Good and the Getting Better Aspects of Remote Depositions
Most importantly, remote deposition technology permits lawyers to effectively move cases along for their clients, even from home. We all learned the classic legal maxim in our first-year law school classes, “justice delayed is justice denied.” Remote depositions allow litigation attorneys to keep the wheels of justice turning while we simultaneously figure out how to conduct hearings and jury trials in this pandemic environment. Very soon, dispositive proceedings, or some significant portion of them, will be conducted remotely as well.
Remote deposition technology is also more than reasonably reliable and easy to use. Scheduling a remote deposition proceeding is accomplished online with just a few details along with the email addresses of the participants. Test calls are conducted as a matter of routine and competent vendors have consultants on standby to troubleshoot technical issues both before and, if necessary, during the proceeding. With a minimal commitment of time spent familiarizing oneself with the process, there is literally nothing preventing an attorney from successfully taking a remote deposition.
Concerns over the security of online depositions have been refuted in large part. Everyone is familiar with the fears over the security of Zoom’s service as the phrase “Zoom bombing” became a term of art in early spring. After peeling back the layers of the actual issue, we now know that any perceived breach of security was not truly an issue with Zoom or the service it was providing. Rather, the issue was Zoom users were not storing their logins and passwords properly resulting in their credentials and the details of their Zoom sessions being hacked. As a result, uninvited interlopers had their way with some high-profile remote meetings, and the public notoriety most assuredly created a perception of security risk that was not necessarily present. With literally tens of thousands of remote deposition proceedings held since March, as of the date of this writing, the author is unaware of a single “Zoom bombing” incident during a deposition with U.S. Legal Support or any other vendor, for that matter, in fairness to our esteemed competitors.
Generally speaking, it is extremely easy to introduce exhibits during a remote deposition. You can maintain a folder of electronic exhibits on your desktop and add them to the deposition through the chat or share screen functions of whichever software platform you are using. Many programs allow you to upload your deposition exhibits in advance and store them online before the deposition even begins. Extra attention must be paid when you have a document that can only be opened with proprietary software or when a witness brings their own documents to a deposition. The wise practitioner will do some advance planning to address these issues on the front end.
The reality is that the software technology permits the remote deposition to simulate the “in-person” deposition as much as possible. In addition to the easy introduction of exhibits, most software platforms allow realtime feeds of the reporter’s transcript, private breakout rooms to talk with a client and markup features enabling the witness or counsel to annotate exhibits and mark them for identification.
Finally, one cannot ignore the tremendous benefit litigators enjoy from the increased “remote” availability of court reporters. Entering the pandemic, the shrinking number of available court reporters was affecting the busy litigator’s practice, from increased transcript turnaround times to the sheer unavailability of licensed professionals to report proceedings. With remote depositions, there is no need for a court reporter to travel across town through heavy rush hour traffic, wasting time that could be spent on finalizing a transcript. The time savings can even allow reporters to handle more than one proceeding in a day. Now, if a reporter is needed in Los Angeles on short notice, a court reporter in front of his or her computer screen in San Francisco can get the job done for the client just as well.
Deposing a witness remotely does remove one of the more critical aspects of this discovery tool, the in-person interaction with the witness. Lawyers are acutely aware that a witness’s credibility and demeanor are part of the equation jurors may consider when a witness testifies at trial. Lawyers are trained to judge how a witness’s credibility at a deposition can potentially impact their client’s case. Removing the in-person interaction can, in some cases, impede the lawyer’s ability to get the most thorough assessment of a witness. To address this issue, new remote services and technologies from jury research and consulting companies are emerging to help with witness credibility assessments including social media investigation and facial expression/emotion analytics. Lawyers may choose to lean on some of these new services as a helpful substitute for the in-person interaction.
Another consideration with remote offerings is that while easy enough, lawyers will need a minimum level of technological competence to be a participant in remote depositions. The learning curve hurdle is not high, but it must be cleared. In terms of equipment, you will need a laptop or mobile device with a camera. You should be familiar with these devices as well as the platform and the vendor you intend to use in advance of the deposition. Failing to familiarize yourself with the technology can lead to very avoidable technological issues. The key word here is “avoidable.” Many vendors offer practice sessions well in advance of the deposition regardless of whether the attorney is the setting party. As vested participants in the process, court reporting agencies are very motivated to make sure that everyone in attendance is comfortable with the process. Lawyers should take advantage of this complimentary support.
Unique Legal and Ethical Questions
Some lawyers are concerned that during a remote deposition, a witness might be “coached” by counsel while a question is pending. Creative vendors and counsel have devised lines of admonition questioning at the outset of the deposition that elicit agreement from the witness and their counsel to shut off electronic devices and all communication during the deposition while on the record.
At this stage of the remote deposition game, it is unclear whether you “may” take a deposition in this manner, or you “must.” For example, a lawyer may wish to take an important deposition in person rather than remotely. It is unclear how a judge will resolve this issue if there is a dispute between counsel. It would seem that a lawyer could insist on personal appearance in cities or counties that have achieved a significant degree of economic reopening and where proper safety precautions are taken. It is also possible with the remote technology to create a hybrid situation where a lawyer can take an in-person deposition but handle all of the exhibits in a touchless manner.
Some litigants have looked at COVID-19 as an opportunity to delay their case from moving forward. There is evidence that courts are starting to come down on lawyers and parties who attempt to use the pandemic as a shield to participation in discovery. In one recent state court ruling, a New Jersey judge ordered an elderly and technologically challenged plaintiff to appear for a deposition remotely. The court obviously found that technological hardship for the plaintiff was not an excuse for her or counsel to avoid making whatever arrangements were necessary in order to appear and testify.
The Forgotten Soldier in the Pandemic Battle – The Court Reporter
The forgotten soldier in this new legal landscape is the court reporter. As with lawyers, the job is not made easier by being remote. Not being present in the room makes it hard for the reporter to take the words right out of the witness’s mouth – to play on a phrase. The reporter now must focus on their own computer along with a Brady Bunch style screen of lawyers and witnesses. Sometimes the participants are not even paying attention to the proceeding that they are attending. Everyone is sympathetic to a jealous pet inserting themselves into a proceeding or other background noise that is expected when working from home. But reporters have offered stories of lawyers audibly doing other work, shuffling papers or taking unrelated phone calls, eating, and, yes, even flossing during the proceeding.
The reporter may experience audio delays if participants are using the computer’s microphone/speaker over a slow internet connection which further complicates making a verbatim record. It is difficult enough when lawyers engage in crosstalk during a live deposition, but in a remote setting, the reporter is left in an incredibly challenging position to identify speakers and capture the record accurately. This alone should be a reminder to witness and counsel of the importance of the admonition to only speak one person at a time.
The court reporter is also, rightly or wrongly, viewed as everyone’s personal IT professional – they are not. The court reporter will have some fluency in the technology of remote depositions because that is what they do now – almost every day. To that extent, the reporter may be a resource who can provide some assistance or tips. But this should not be a substitute for having some basic level of fluency in the process and knowledge of your equipment. The best practice is to look to the agency who is providing the reporter as the primary “go-to” in terms of getting you prepared for your deposition and resolving any technical issues. Competent agencies have dedicated deposition techs available to appear during the proceeding and make sure everything runs smoothly so both the reporter and attorneys can focus on their respective jobs.
U.S. Legal Support Offerings
Taking depositions remotely seems to have gained irreversible momentum in the legal community. In the end, this practice will make litigation attorneys more efficient and familiarize everyone with available and emerging technologies to help litigate cases. At U.S. Legal Support, we offer several options to take your depositions remotely.
Our RemoteDepo™ platform allows you to take depositions remotely, interact with all participants, annotate documents onscreen, seamlessly introduce exhibits to the proceeding with the chat or share screen functions, utilize private breakout rooms and even view a live feed of the reporter’s transcript.
Our InstantExhibit+™ platform is designed for larger, document-heavy cases with multiple, ongoing depositions. You can manage a repository of exhibits and track them for the entire case across many depositions. Each party has private access to their own exhibit folders to use as they see fit during the matter. This is also a great tool to facilitate no-contact exhibit introductions during an in-person deposition.
Contact your local U.S. Legal Support representative for additional details including scheduling a one-on-one demo or practice session.