Maybe you’re considering remote depositions as litigation grows and travel becomes more challenging. Or you’re already doing depositions remotely and want to improve. Either way, these six factors will help you get the most success and satisfaction out of your remote depositions:
1. Coordinate with opposing counsel
As soon as you decide to go remote, let your opposing counsel know. Federal rules state that “The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.”
The ABA concurs: “Working with opposing counsel can benefit all of those involved in a trial. During the pretrial conference, all parties can discuss trial technology, determine quality standards and even agree to share technology resources.” Cooperation can also minimize “big guy/big budget” claims.
2. Check state and federal rules.
Here’s a primer from the ABA on the rules around depositions conducted electronically. Generally, if both sides stipulate, there shouldn’t be a problem. State lawmakers and the Federal Rules of Civil Procedure have recognized the cost and efficiency benefits of technology. Make sure you know the rules about swearing in witnesses in your jurisdiction.
3. Make the right tech decisions.
For a proceeding as important as a deposition, it’s critical to use high-quality videoconferencing. Business-class videoconferencing, whether PC-based or room-based, is the right choice to ensure a quality experience and outcome. High-definition technology will enable you to see the same facial expressions and (potentially) body language that you would in an in-person deposition.
With HD resolution, you can see “something as subtle as slight wrinkles on the forehead or … beads of sweat,” writes The Expert Institute. These types of cues that have always helped attorneys determine the truthfulness of a witness and how they might fare in front of a jury. You don’t need to sacrifice this valuable information when you work remotely. In fact, all things being equal, more participants will be able to see the information when you’re working remotely. A hardwired internet connection is a good idea as well.
If you’re opting for the homegrown route, understand there’s always inherent risk, including security and data risk, when nontechnical people configure IT, however basic. It’s often a good idea to consult the experts.
4. Consider a deposition software solution.
Packaged solutions offer essential integrated capabilities beyond just a videoconferencing connection. You’ll probably want features such as:
- Real-time transcript streaming, which enables teammates in other locations to audit the deposition, search keywords throughout the session, highlight important passages, and export transcripts afterward. This appears on the same screen as the witness.
- Electronic exhibits that can be uploaded in advance or on the fly and protected from unauthorized viewers.
- Multiparty videoconferencing, enabling multiple video feeds on the screen.
- Enhanced security, including password protection.
- Secure, private one-to-one or group chat, which enables colleagues and subject matter experts to collaborate.
5. Control and plan your exhibits.
Several remote deposition solutions have built-in functionality for presenting, submitting, stamping, marking up and downloading exhibits, e.g., emails, accident reports, medical images, laboratory findings, and much more.
Almost all discovery documents are now electronic, but when it comes time for the deposition, attorneys and their staff members create reams of paper exhibit copies for use at the deposition. Using digital exhibits keeps discovery documents electronic, enabling you to experience the same convenience that an iPod offers over carrying your music around in crates full of vinyl. With this approach, you also avoid shipping your exhibits to the deposition site ahead of time. You save on shipping costs and maintain control of the documents.
At the deposition, deposing attorneys have full control of each exhibit. They can preview it on their own screen until it’s time to present the exhibit to the deponent and submit it on the record. To make management and retrieval easy, tag electronic exhibits with keywords pertaining to issues being litigated. Another benefit of electronic exhibits is that they can be reused across depositions. You won’t have to wait for originals used in previous depositions to be shipped scanned, OCR’d and uploaded with transcripts.
6. Invite your client to participate.
Under certain circumstances, clients may want to see witnesses with their own eyes. Invite them to attend the deposition and gauge witness credibility for themselves. Clients can make your deposition more successful by suggesting questions to ask or noting flaws in their testimony that only they, as industry experts, can detect. When clients can’t attend, you can still extract value from the remote deposition by editing the crucial moments of the session into 30-second clips and sharing them with your client.
To some attorneys, remote depositions are understandably new and scary, perceived as one more complex technology they don’t have time to learn. When you think about it, though, remote depositions are a natural extension of all the other things we do remotely and electronically – online, over the phone, or over the broadcast airwaves.
Today’s remote deposition solutions are surprisingly easy to use, with a user experience borrowed from the most popular consumer technology. Combining powerful technology with the success factors suggested here can put you well on your way to better results in your cases and in your business.