The story of how the legal profession embraced technology almost overnight in order to keep the justice system functioning through the COVID-19 pandemic is by now a familiar one.
Just as Dorothy discovered in The Wizard of Oz that she always had the ability to return to Kansas, so too lawyers discovered they always had the ability to conduct depositions remotely. All that was necessary was the resolve to do so (and a few rule changes).
Prior to 2020, few depositions were in fact conducted other than in-person. But today the vast majority of depositions are fully remote. The percentage of depositions conducted with at least one party participating remotely – i.e., both “remote” and “hybrid” depositions – is, we believe, near 80 percent at present.
Less familiar is the story of the effect that COVID-19 has had on the court reporters who provide deposition services. Although the court reporting industry was ready (anxious, in fact) in 2020 to provide remote depositions, when the litigation environment changed rapidly with the pandemic, the work routines of court reporters underwent a prompt and profound transformation as well.
Travel time vanished from court reporters’ calendars. Technology budgets ballooned. And some court reporters found themselves in novel situations that, in retrospect, seem inevitable in an adversarial setting where all participants can’t see each other all the time.
Court Reporters Do More With Less Travel
The pandemic greatly reduced travel for court reporters. This change was welcome in an industry where the existing pool of qualified court reporters struggles to meet the demand for deposition services.
With remote depositions, court reporters can work from a home office, scheduling depositions back-to-back throughout the day, with no time required for travel between physical locations. Before the pandemic, travel time was accepted without question as part of the job. It made as much sense to fret over travel time as to worry about the weather.
Chris Willette, formerly a court reporter and agency owner who now serves as Esquire’s Vice President of Acquisition Strategy, says that the elimination of travel time between reporting jobs has transformed the industry. The result has been a boon to both lawyers and court reporters.
“Attorneys sometimes found it challenging to move cases toward settlement due to court reporter availability to cover depositions,” Willette says. “Now we’re available to cover more depositions because we’re not sitting in traffic. That’s a significant shift in the profession.”
Travel time to in-person depositions is wasted time for court reporters regardless of the markets they serve. Driving 60 interstate miles to a nearby city, or commuting six miles across a large urban area, can easily eat up enough time to conduct an additional remote deposition in a typical court reporter’s day. With remote, litigators experience a greater opportunity to schedule their depositions sooner. And court reporters can make more productive use of time in what is, for most, a very long workday.
Remote Requires New Technology Investments
Just like everyone else in the legal system, court reporters have had to purchase additional technology in order to meet the new demand for remote depositions. They’ve had to outfit private, secure home offices in which to work. They’ve acquired new video cameras and improved headphones to make sure they have the best opportunity to accurately capture testimony during remote depositions.
Upgrades have also been necessary for the court reporter’s broadband Internet connection and in-home Wifi routers. Having a network connection robust enough to capably carry both audio and video is the cost of doing business for court reporters these days. Just as was the case with in-person depositions, all parties involved in a remote deposition expect that the court reporter will be the most reliable recorder of the questions and answers from everyone involved. Occasional technology glitches are not really an option for court reporters.
Many court reporters have also found it necessary to purchase a second computer for their home offices – the first to support the work of transcribing and (in some cases) transmitting realtime testimony; and the second computer for the videoconferencing technology that carries the audio and video of the other participants.
Stenotype Machines Get Technology Boost
Court reporters are also taking advantage of innovations that have continued to evolve even during the pandemic. These new technologies allow court reporters to do a better job in less time.
To the outside observer, the stenotype machines that court reporters use to capture testimony have changed little during the past several decades. Appearances are deceiving, however. While the outward appearance of the stenotype machine has remained somewhat the same, under the hood these machines are now highly capable computerized devices.
Stenographic machines, combined with a skilled stenographic reporter, which once produced a paper roll of inscrutable letter combinations, which had to be dictated and then typed up into a usable transcript, today are able to instantly generate text for real-time viewing in the same room or streaming over the Internet. The final edited transcript can be delivered in specialized formats used by litigation management tools such LexisNexis Textmap and LiveNote Portable. Court reporters can produce fully searchable transcripts, often with hyperlinks to supporting materials and embedded exhibits.
Anir Dutta, president of Stenograph LLC, the leading supplier of stenotype machines and software for the court reporting industry, believes that technological innovation promises to bring even more efficiency to the court reporter’s workflow.
Consider, for example, that after a deposition is concluded, most court reporters spend about 1-2 hours editing the transcript for each hour of deposition time.
According to Dutta, automatic speech recognition technologies can cut that editing time in half. “The ability to use automatic speech recognition to cut the editing time down is a key productivity game-changer that will make the court reporter much more efficient,” he says.
Automatic speech recognition technology has the capability of instantly zeroing in on problem areas in a deposition transcript that might take a long time for the court reporter to identify. When a court reporter captures an audio recording of deposition testimony contemporaneously with the court reporter’s own transcription, ASR can quickly analyze both files and find the problematic “hotspots” that require the court reporter’s attention.
“ASR can actually just focus on those hotspots and provide its checking functionality to the court reporter as a tool to get to those problematic areas quickly so the court reporter doesn’t have to go through 300 pages of transcript when maybe only a very few pages need real editing attention,” Dutta says.
Remote Creates Novel Challenges
Technology investments notwithstanding, remote depositions ca n present challenges that are not easily overcome.
With a traditional in-person deposition, the lawyers can see when the court reporter is marking exhibits or engaged in some other administrative task that calls for a pause in the questioning. In a remote deposition, the court reporter’s hands are not always on camera, which means that the lawyers may not be able to tell when the court reporter is ready to proceed. For this reason, cameras should be placed in such a way that everyone is “on the same page,” visually speaking, as much as possible. It is also helpful for all participants to agree at the outset not to proceed unless everyone audibly signifies assent to begin, or resume, questioning.
A related challenge occurs when the court reporter is unable to determine who is speaking. The speaker may be off-camera, or there may be cross-talk that is obscuring the identity of the speaker. Here again, proper positioning of the video cameras and discipline to avoid cross-talk will largely solve this issue.
Another challenge unique to the remote reporting environment is the occasional request from attorneys that the court reporter be physically present with the deponent when all other participants are remote. This request may be prompted by a concern that the court reporter must be present with the deponent when administering the oath (usually an unfounded concern given recent court rule changes), or by a concern that the presence of the court reporter with the deponent will minimize opportunities for outside influences to spoil the integrity of the deposition. Court reporters may, in addition to capturing the record in an impartial manner, employ additional measures designed to ensure the integrity of the record – such as seeking clarifications or making sure that deposition participants are not talking over each other. However, the ultimate responsibility for ensuring the integrity of the deposition process rests with the lawyers, both as a matter of law and professional ethics.
Depositions Are Better Now
We believe that the court reporting industry is providing better service today to its customers than was possible before the COVID-19 pandemic struck. Individual court reporters, the backbone of the business, serve more users than ever by traveling less and leveraging technologies that create more accurate transcripts in less time.