With courtroom approval, trial legal professionals uncover distant filings
Laurie Berg, a court reporter in New Hampshire, reminded me that she had received certification in 2014 for a new software program for electronic exhibits. She first used it on April 1, 2020 when she was doing a remote deposit via Zoom.
Do you remember the beginning of 2020? The holidays were over, the calendar had turned to a new year. After a short break, the offices were quiet again. The routines of work, school, family, and other responsibilities returned.
Until they weren’t.
That fantasy that goes, “Wouldn’t it be great to work from home and skip the commute?” was no longer a fantasy. The COVID-19 pandemic forced companies such as law firms to work from home. We will work like this for the foreseeable future.
I also remember my 2014 column on ending the paper hunt thanks to electronic exhibits that streamline tipping – whether remote or in person. The technology from eDepoze and other providers is now catching on. Upload two or 200 exhibits beforehand, don’t show and mark them until the deposition begins, and keep them with the transcript at the end.
Jurisdictions across the country have said the discovery must continue. The trial attorneys are required to adhere to a deposit plan without knowing the familiar surroundings of a conference room. Court orders that allow stenographers to swear witnesses without being in their presence prohibit requests for postponement.
Over the past few weeks, my team and I have checked in with several litigation attorneys in the Boston area whose practices are national and international as to how they have adapted to remote deposits.
There is consensus:
- The transition went unexpectedly well.
- Court reporting agencies and court reporters have been instrumental in providing training and technical support.
- Electronic exhibits change the game.
- Lawyers are kind, willing to learn and help one another.
- After the pandemic, removed debris will not go away whenever it does. There are too many advantages.
Webinars, small group and one-on-one preparation sessions familiarize litigation attorneys with best practices for effective remote depositions and provide a high level of convenience for all participants. This is what attorneys – and court reporters – say about tipping deposits in their respective home offices.
Shepard Davidson, partner in the Business Litigation Group (Burns & Levinson, Boston), recalls some frustrations when the courts closed. “After a few weeks it became clear that the crisis was long-term. Although I couldn’t postpone my existing litigation, new disputes arose every day. I even suggested a deposit through Zoom, but the other side would not agree. Since there were no rules, I couldn’t even force myself. “
However, at this point, one party cannot object to a remote deposit.
“Before the pandemic, I would have thought depositing this way would be worse than depositing in person.” After doing a series of deposits remotely, he sees it differently.
“Lawyers don’t like change,” remarked Davidson without excluding himself. “I would never work from home before. It was too difficult to get into a frame of reference to focus on. It was easier to go to the office. Now I have options and I am much more open to using technology in situations I would never have done before. “
He is not alone. “Lawyers who have been practicing for 40 years and doing it the same way are finding that we have new circumstances. That’s how we’re going to do it, ”said Davidson.
Charla Bizios Stevens, Chair of the Labor Law Practice (McLane Middleton, New Hampshire and Massachusetts), has not made a personal deposit since March. She was familiar with Zoom and other video conferencing platforms before the pandemic, as her group uses them for corporate meetings.
However, clicking a link for a deposit was new.
“In the spring, the litigation was quiet for a month or two. Then it became clear that we would work from home that way for a while, ”she recalled. “We had to come back to it and plan deposits.” Skype, which she used occasionally, wasn’t optimal.
After taking part in a few Zoom Depositions that defended and did not take, she saw little downside. “It works well,” said Stevens. “I don’t feel like I’m missing a personal connection, and breakout rooms allow us to communicate with customers in confidence.” Like everything new, “marking electronic exhibits took some getting used to, but now it’s seamless,” noted Stevens.
Michael Sullivan, partner (Prince Lobel, Boston) also recalled that if you were to extend your work from home, “figuring out how to remotely deposit” was essential, especially since it was important in a large overseas case postponed for months. “The court has made it clear that the case cannot wait forever. There were detection deadlines, and when people couldn’t fly, removing debris was the only way out. “
Even so, Sullivan wanted to avoid giving witnesses an advantage by sending exhibits beforehand. Screen sharing was awkward for viewing a PDF or Word document. “It doesn’t allow two people to view any part of the exhibit at the same time,” he noted. The combination of Zoom and a platform for the electronic introduction of exhibits on site solves the problem and supports an efficient, comprehensive digital workflow.
Coordination with court reporters
Remember, court reporters also work from home. Except in very rare cases, steno machines and laptops may not be carried into conference rooms in the city. Personal debris during COVID-19 poses a number of public health compliance issues.
In 30 years, Susan Lozzi, of Salem, Massachusetts, had made a handful of telephone statements from home. Now, after a spring break, she regularly covers video conference debris without ever filling the gas tank.
And Laurie Berg in New Hampshire is using the electronic exhibition certification she acquired six years ago.
Prior to commencing a filing, attorneys agree to updated provisions that have been placed on the record so that the reporter can remotely swear in the witness. Both Berg and Lozzi find that their preparation for remote debris with us here at O’Brien & Levine helps them serve customers.
Berg admits that deposits on Zoom are still new and there are some concerns. She covers all aspects of connectivity and delves into the differences between personal and remote deposits. In particular, it reminds the parties to speak in turn.
“We ask for regular tipping of the same, but this is essential with Zoom,” said Berg. “When someone else starts speaking, the sound is turned off. I have to pause for an accurate record. “
“Reporters never like to interrupt,” added Lozzi. “However, sometimes it’s inevitable. If we can’t hear something or if it’s mutilated, we can’t play it back. There is nothing to be heard. “
Still, Berg and Lozzi note that attorneys are patient and flexible, and witnesses are cooperative as everyone conforms to remote protocols. The appreciation for electronic exhibits can be clearly seen.
“ESepoze is easy to use,” said Berg. “I give the lawyers a few tips. You don’t have to be tech savvy. The first time a major case was filed recently, a lawyer was a little intimidated. A few deposits later she showed everyone what to do. “
Lozzi notes that attorneys who are initially wary of remote capture technology stop by once they become familiar with it. “Out of the blue, a lawyer asked me how I liked Zoom. I told him it was certainly different at first, but now the efficiency is unbeatable. He agreed, and believes that when there are no more restrictions, the process practices will continue to plan deposits this way. “
Remote Depositions: Post-Pandemic Normal
Our small survey of three trial lawyers and two court reporters shows that there is a consensus that removed debris will remain – even if the parties can sit next to each other in a conference room without a mask.
Lawyers find that clients overcome the attorney’s reluctance to drop witnesses remotely. They also appreciate the cost savings that can be made when a legal team doesn’t have to fly across the country.
For their part, court reporters are always available to be included in the file. No need to pack your gear, commute, find parking. “People will get used to it and it will become a routine,” said Lozzi.
Burns & Levinson’s Davidson believes working from home will last, and remote debris will be no exception. “In any case, there will be more deposits of Zoom in the future. If I have to fly across the country to drop off a moderately important witness for two hours, the Zoom experience will judge whether I need to be in the room. “
Likewise, McLane Middleton’s Stevens intends to continue with live testimony for key witnesses and consider how best to get on with others. “People have seen the time saved not traveling and the cost savings for customers. We will look at each deposit. Do we take this personally or can we do it remotely? “
Prince Lobels Sullivan disagrees and predicts that more remote deposits will be made in the future. “Travel and other tipping costs can be eliminated for the benefit of all,” he said, citing clients and legal staff.
“Courts hear that removed debris does quite well. I think it will be a lot easier than before to skip a live performance and do it remotely. It will be hard to imagine going back to the way it was, ”says Sullivan.