Five litigation headaches I could have avoided

Posted: August 2, 2017

Much has changed since I left full-time litigation. Back then, and we’re talking fewer than five years ago (lest I sound like an old man lamenting my two-way uphill walk to school), nobody I knew was using the deposition technology that’s available today. Almost everything happened in person, and the work product was usually trapped in paper.

If I could turn back the clock, I would avoid some of these deposition headaches that we brought upon ourselves by doing things the hard way – the only way at the time:

  1. Sticky-note storms. Before deposition software offered secure team chat over laptops and tablets, depositions looked like high-school study halls with all the passing of private messages on sticky notes. It distracted me and everyone else in the room, including witnesses.And because such notes were typically attorney/client communication, you couldn’t just throw them away. You held onto them. Occasionally, they would flutter from your pocket – say, a few days later when you were at a wedding shaking hands with the father of the bride.
  1. Missing docs. We weren’t typically using electronic exhibits in depositions when I was a full-time litigator. We printed the documents we thought we’d need for a deposition ahead of time, then we’d schlep them around in boxes. When a witness unexpectedly raised a topic we hadn’t prepared for (which happens to every litigator), we urgently needed documents we’d left back at the office. So I’d email or call my paralegal, hope she’d respond, and somehow find the fax number of the office I was working in. Then I’d stall until pages of faxed documents arrived. Finally, I’d have to search for a nearby copy service (or negotiate for the use of a copier) to print and produce sufficient copies for everyone around the deposition table.This process made for a long day. Today, lawyers can just load all of the potential exhibits into their deposition software and call them up on the fly. Worst case, someone on the legal team can upload a missing document in an instant. No more scrambling, faxing, and copying.
  1. Information overload. The flipside of missing documents is information overload. When I began trying cases two decades ago, I could bring all the case documents in a few boxes to the deposition and know every detail of every piece of paper.Times have changed. Today, electronic discovery generates hundreds of thousands of relevant documents (emails in particular) even in a simple case. You can’t possibly know what’s in every document. The best way to handle the information at deposition today is to forgo the cases of paper and preload the relevant documents into your deposition software. There you can search all your information by keyword and retrieve nuggets as you need them. With electronic exhibit technology, you can have every document in your arsenal available, just like when you had your three boxes of docs (only this way is way more convenient).
  1. Lone-wolf syndrome. Often in a deposition, I was challenged to go it alone without the assistance of my paralegal or colleagues. This sometimes posed a problem since complex cases are typically divided among colleagues based on topics or witnesses that are likely to come up in any teammate’s deposition. Flying solo meant I was missing a second set of eyes, I didn’t have anyone to help with exhibits, and no one was there to tell me if I asked the wrong question – or if I missed an important question entirely. With today’s deposition technology, legal teams can collaborate from start to finish.You can have as many people as you’d like sitting in on the deposition – remotely via PCs, laptops, tablets, and phones. Paralegals can upload important documents. Clients can weigh in on the facts. In-house counsel can provide important context to their outside counsel. Expert witnesses can immediately spot flaws in the deponents’ answers. Everyone can follow the video and audio streams and send private chat messages if they have something to offer. Today, technology eliminates the need to go it alone or scramble during breaks to check in with colleagues.
  1. Time killers. When I prepped witnesses for deposition, the process usually involved flying to the site a couple of days before the deposition and spending a day and a half sitting down in person with the witness. Not only did this itinerary burn through valuable time, money, and energy in travel and expenses, it made it challenging for the witness to digest the information I was sharing. Today, we could connect remotely, apportion our prep time in bite-sized pieces – say, two hours at a time – then get together in person on the day of the deposition. This approach would be easier on me, easier on the witness, and easier on the budget.And unlike witness prep via phone, videoconferencing would let me see the witness’s body language. We could also ensure everyone is looking at the same words on the same page when we’re reviewing exhibits.

These are just some of the headaches I could have avoided if I had access to today’s technology. If you’re still doing things the old way – always in person and always with paper – there are alternatives that will make your litigation life easier and your cases more affordable.

Why not give them a try?

Avi Stadler

Avi is a veteran litigator with deep experience in the financial industry, representing clients in federal and state court, arbitrations, investigations, and regulatory actions. He has handled numerous cases involving business disputes, professional liability, intellectual property, employment discrimination, and white collar crime. As a former adjunct professor at Georgia Tech and in the Emory Trial Techniques Program, he has trained hundreds of law students and law firm associates on deposition and trial advocacy.