At this point in the legal community’s forced conversion to virtual lawyering, this much is clear: Attorneys are succeeding with remote technologies but not without a few bumps on the road to success.
That sentiment was evidenced in a recent survey of attorneys conducting remote depositions—many for the first time—conducted by TechValidate, a third-party research service, on behalf of Esquire Deposition Solutions.
According to the survey, the most frequently expressed concern involved the deposition witness. Fifty-seven percent of respondents expressed concern that the deposition witness lacked adequate technology to participate in the proceeding. Another 46 percent said they worried they could not adequately defend their witness if they were not physically together in the same location.
One commenter, making a point made by several others, noted that remote depositions were “easy to do as long as the witness has the technology.”
The second most commonly expressed concern involved digital exhibits, with 54 percent of respondents reporting uneasiness with the process of managing digital exhibits before, during, and after the proceeding.
Interestingly, security issues—such as “Zoom-bombing” and loss of client confidential information, which received attention as lawyers rapidly switched to remote processes during the first weeks of the COVID-19 epidemic—were not among the leading concerns uncovered by the survey. Just 27 percent of respondents expressed a concern about the security of remote depositions.
The survey collected sentiments from 163 attorneys who conducted remote depositions with Esquire since March 2020. The attorneys came from a wide cross-section of the legal community: corporate legal departments, private practices large and small, and government agencies.
The leading concerns regarding remote depositions were:
- Lack of access to remote/virtual technology, especially for a witness (57%)
- How to manage exhibits before, during, and after the proceeding (54%)
- How to effectively advise and support my witness if we’re not in the same room (46%)
- Security of deposition (27%)
- Lack of consistent processes in place for managing an online deposition (27%)
Many survey respondents described working with a technology learning curve that, with persistence, eventually resulted in success with remote depositions. According to Maria H. Chaves-Hawley, GEICO, “Everything went smoothly and though I was nervous beforehand, after doing 10+ over the last 2 months, I wish to never go back to in-person depositions.”
Matthew S. Nasser, also with GEICO, added, “It was the first remote deposition and we had a lot of audio problems, but that has now been entirely worked out.”
Finally, another comment that may best represent the views of many attorneys:
“We came to a screeching halt for 2 weeks at the end of March, and then everyone realized the show must go on. So depositions got rescheduled, and most attorneys realized it’s more convenient to do it remotely anyway.”
Fifty-seven percent of attorneys—the most frequent response—indicated that the desire to keep working was a reason why they had scheduled remote depositions. Another 44 percent said that the case matter was too urgent to allow to languish until social distancing restrictions are lifted.
Another large percentage of respondents believed that the press of legal business would overwhelm them if they waited until conditions were more favorable to in-person depositions: “urgency of matter” was mentioned by 44 percent, and “caseload keeps growing” was cited by 38 percent of respondents.
Twenty-nine percent listed “client pressure” as one of their reasons to embrace remote depositions.
Litigators Are Making It Work
The legal community has so far shown itself to be an agile—if not eager—adopter of virtual alternatives to in-person legal processes. Remote depositions have been no exception. The overwhelming majority of survey commenters reported a “very good,” “excellent,” or “great” experience with remote depositions—even among first-timers.
One commenter appeared to speak for many when he called his deposition a “surprising success,” implying that he expected a few hitches that fortunately did not materialize. Another litigator reported “a positive experience, much easier than I anticipated.”
The reported high level of satisfaction with remote depositions, coupled with attorneys’ ability to quickly master the technology, suggests that attorneys and their clients will be looking hard at remote depositions as a way to save litigation expenses. For many, in-person depositions will not be the default option. Every litigator, it seems, is now actively weighing which depositions must be conducted in-person and which ones can be conducted remotely without prejudice to the client’s interests.
Very few respondents—less than one percent—were concerned that remote depositions are not a lawful means of conducting pretrial discovery in their state.
Quibbles aside, the survey’s overwhelming message is that litigators are learning how to succeed and move their cases forward with remote depositions. A few encountered challenges, whether with exhibit management or witness connectivity, but everybody else rose to the challenge and made it work.
Note: The TechValidate survey was conducted in May 2020 among attorneys who conducted remote depositions with Esquire Deposition Solutions since March 2020.