Not so long ago, a deposition was an in-person deposition. And court proceedings took place inside the courthouse. No exceptions.
But the legal profession’s embrace of technology to keep law practices running and caseloads manageable during the COVID-19 pandemic transformed the justice system. A deposition during the pandemic was a remote deposition. And court proceedings went virtual. No exceptions. Well, very few exceptions.
Today, litigators seeking to obtain testimony in pretrial discovery enjoy a true choice in how to proceed: A deposition can be conducted in person or remotely. How that choice will be made is dictated by efficiency and cost considerations, as well as by the strategic needs of the case. For many reasons, litigators today are choosing to conduct their depositions remotely in numbers that have not significantly diminished since the pandemic’s peak.
Court reporters also live and work in the same dynamic, technology-driven environment as lawyers. Although court reporters don’t decide whether a deposition is going to be conducted remotely or in person, they are nevertheless active participants and have a preference for one type of proceeding or other.
In January 2023, Esquire Solutions conducted a survey seeking information regarding court reporters’ preferences for remote or in-person depositions. Do they prefer to work in-person or remote depositions? Or hybrid depositions? Which factors influence their preferences? More than 400 court reporters responded to the survey, providing what we believe are meaningful insights into how court reporters approach their work responsibilities today.
Preference for Remote or In-Person
For a number of reasons, most court reporters said that they preferred remote depositions, with a significant percentage expressing a desire for a mix of remote and in-person depositions.
When asked which types of depositions they preferred, survey respondents replied:
When asked why they preferred remote depositions handled from their home or office, survey respondents replied:
The time associated with travel is a dominant concern among court reporters. Unlike litigators, who typically can bill clients for time spent traveling to depositions (and other case-related travel), court reporters are not paid for travel time.
The court reporting business is currently experiencing a shortage of trained stenographers. In many markets, the demand for high-quality deposition services exceeds the number of available court reporters, providing yet another reason for court reporters to be acutely aware of the time associated with each deposition. Litigators desire and deserve their depositions to be scheduled promptly and provided by a skilled court reporter. In-person depositions have built-in travel times that stress markets already stretched thin by a less-than-full pool of qualified court reporters.
Travel Headaches Top List of Concerns
Respondents who submitted narrative explanations supporting their preference for remote depositions often mentioned travel time and headaches associated with travel:
- “Too much long-distance travel involved for in-person depositions.”
- “The most stressful part of my job is the driving. You have to leave really early to be on time because of accidents, et cetera. That really is the only reason why. If it is close to my home, I have no problem driving to a job.”
- “Save time not commuting, and time is money.”
- “There’s just no reason for me to risk the exposure and endure travel expenses when I can just as efficiently complete a job in my home. Even if everyone is present they do not need a reporter physically for most depositions.”
Court reporters cited two other travel-related factors that make remote depositions preferable to in-person depositions: the stress of driving in congested metropolitan areas and the desire to avoid putting mileage on their personal vehicles. “Less wear and tear on my vehicle and reduced chance of being plowed into by the crazies on the roads these days” was how one court reporter expressed this concern.
Others linked traffic-related struggles to working in large cities:
- Los Angeles: “Traffic is too stressful for me.”
- Miami: “Traffic is very bad here during rush hour times.”
- Atlanta: “I don’t want to drive in Atlanta traffic.”
Other respondents expressed worries about the risk of becoming a crime victim while traveling to and from in-person depositions.
Health concerns (COVID-19 and other health-related risks) were mentioned by some respondents, though less frequently than travel time and travel risk considerations.
When asked which factors they considered when deciding whether to accept an assignment for an in-person deposition, survey respondents mentioned the following ones:
Answering a separate question asking whether they are “willing to report at an in-person deposition,” nearly half of the survey respondents (46%) indicated that they were willing to handle in-person depositions, with another large percentage (33%) indicating that their decision was based on the specifics of the assignment. Twenty-one percent indicated an unwillingness to work an in-person deposition.
Technology Is Key to Hybrid Deposition Success
Unlike a remote deposition, where all parties participate via technology from a remote location, a hybrid deposition is a deposition where some participants are physically present with the court reporter while others engage with the deposition via remote conferencing technology.
For court reporters, remote and hybrid depositions present distinct challenges.
Forty-five percent of court reporters surveyed said they were “willing to report at a hybrid deposition, where some parties are remote,” while 23% indicated they were unwilling to handle hybrid depositions. For 31% of survey respondents, the answer was “it depends.”
The location of the witness (33%) and the location of the questioning attorney (21%) were the two most frequently mentioned considerations for court reporters when they decide whether to accept an assignment for a hybrid deposition. The category “Other” collected the most survey responses (41%), indicating a wide range of opinions on relevant considerations in this area.
Capturing an accurate record of the proceeding is the essence of the court reporter’s job. Many respondents mentioned, in their narrative explanations, that good audio quality can be difficult to obtain in hybrid depositions. Worries about poor sound quality due to laptop computers and low-quality microphones were often expressed by survey respondents.
These are a few representative replies on the subject of hybrid depositions:
- “These are really hard if an attorney is present remotely and a laptop is what is being used. If it’s the office’s videoconferencing equipment of the law firm instead of a laptop it isn’t so bad.”
- “OK if I am remote and steps have been taken to make sure I have adequate audio to report the proceeding.”
- “These tend to be not great quality for the court reporter.”
- “If there is a central audio. Too hard when the computer is just in front of one person.”
- “Hybrid can be difficult because the attorneys are still using laptop mic.”
A key takeaway here is that, from the perspective of people who conduct hundreds of depositions annually, the challenges presented by hybrid depositions can be overcome if sufficient attention is paid to the technology employed. For example, replacing a laptop computer’s built-in microphone with a high quality external microphone is one of the first (and least expensive) technology upgrades recommended by virtual trial and presentation experts. Wired Internet connections are less likely to fail than wi–fi and, of course, taking the time to test everyone’s audio levels will always lead to a smoother hybrid deposition experience.
The imperative for litigators to ensure that remote and hybrid depositions are captured by sufficiently robust technology was identified by the American Bar Association in its February 2023 Best Practices for Remote Depositions (PDF) resolution. In fact, the resolution’s drafters suggested that this obligation is part of the lawyer’s ethical duty of technology competence.
Most of the reasons why court reporters prefer remote depositions will endure for the foreseeable future, if not forever. Current health concerns may diminish (we certainly hope so), but travel time will always be the bane of every professional’s workday. Efficiency will always be valued. Does anyone believe traffic is going to get better? And technology can be expected to improve every year, just as litigators’ skills employing that technology will improve as well.
It shouldn’t be surprising that court reporters — when presented with a true choice — tend to prefer remote depositions.