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Virtual Depositions: Change Forced by Covid Aims to Stick (1)

Dec. 29, 2020, 9:46 AM; Updated: Dec. 29, 2020, 4:07 PM

Seattle trial lawyer Andres C. Healy’s team conducted 15 virtual depositions in one three-week span due to Covid-19, a volume that would have taken a lot more time—and money—if done in person.

Virtual depositions can cut costs by up to a third when factoring in travel expenses, and can be done efficiently if the transition to tech is fully embraced, the Susman Godfrey partner said.

“Once you put in the initial work making sure you’ve got a good internet connection and that you’re familiar with the platform you’re using, taking depositions virtually is incredibly cost effective,” Healy said.

Many Big Law litigators, who had no choice but to conduct depositions remotely while stuck at home, have taken to it after some practice and with little pushback. This suggests the change is likely to remain widespread once pandemic-era distancing fades, courts resume full operations with big case backlogs, and firms take stock of the bottom-line impact.

To be sure, in-person depositions won’t disappear, particularly for witnesses whose credibility may be in doubt given how hard it is to read body language over video. In more routine matters, however, virtual depositions now feel like “the new normal,” said Morgan Lewis associate James Alphonse Nortey, who hadn’t participated in remote depositions before the pandemic.

Covid Disruption

Taking a deposition in person or virtually has long been a matter of preference for the most part. The profession by and large maintained the practice of traveling interstate or even abroad for work until 2020.

Remote depositions during the pandemic have largely gone smoothly, despite early worries about Zoombombing and launching them from home. Judges also have urged attorneys to conduct them remotely to keep proceedings moving with court operations and dockets slowed or halted by the virus that has surged nationally with more than 19 million cases and 334,000 deaths in less than a year.

In one high profile example, a judge in the Southern District of New York in December permitted remote depositions of current and former Saudi government officials in a Sept. 11-related case that’s been playing out for years.

Over objections of attorneys representing the families of victims, Magistrate Judge Sarah Netburn ruled that video appearances were preferable to the long travel and quarantines that would be necessary for witnesses to be deposed in person.

Netburn rejected plaintiff suggestions to possibly conduct in-person depositions outdoors in concert with distancing and mask practices. “Such protocols would significantly diminish any value to in-person depositions.” she said.

Legal Tech, Some Caution

Adoption of remote depositions during the pandemic also has been a boon to legal tech and videography companies.

Veritext Legal Solutions has offered remote deposition services for over a decade, but only about 10% of its client base was regularly taking advantage of that option before March, the company’s chief technology officer, Tony Donofrio, told Bloomberg Law in an interview.

Nine months into the pandemic, that number is closer to 90%, he said.

Veritext provides document-sharing features that allow everyone in their Zoom-powered virtual meeting rooms, from the witness to the court reporter, to review exhibits at the same time. It took some practice, but attorneys have gotten the hang of how to restrict chats and screen sharing to preserve confidentiality and enter exhibits into the record, Donofrio said.

Those are important considerations because attorneys need to keep in mind how the record will read if a case is appealed, said M. C. Sungaila, the leader of Buchalter’s appellate practice.

Although lot of trial attorneys have taken note of the benefits that remote hearings have provided, Sungaila worries about the “pile of preservation issues” that could be affected by glitchy tech or real-time confusion.

“Can I tell what’s happened?” she asked, explaining what a review of a virtual deposition could look like. “Can I tell what exhibit is being discussed or what the witness is able to see?”

Attorneys also need to avoid “soldiering through” a remote deposition that’s going poorly because of lagging audio, dropped meeting participants, or other tech issues that could affect clarity of the case record, Healy said.

Still, once the pandemic clears, attorneys predict a hybrid semi-remote system will become the norm. There will always be those witnesses that an attorney just wants to interview in person, they said.

“So much is communicated nonverbally through body language and eye contact,” Nortey said, explaining why a litigator might choose to interview a witness in person rather than virtually. Remote platforms typically only show the upper half of a witness’s body to other participants, for example.

It can also be hard to develop a rapport with a witness over a video feed, which is needed to elicit the necessary testimony and evaluate how a jury may react to him or her, Nortey said.

Open to Change

The U.S. legal industry, especially Big Law, historically has been married to an in-person business model and has been more reluctant than other industries to adopt new technology. But the pandemic has accelerated transitions to virtual technology across the board, and legal is no exception.

For instance, Donofrio said he thinks the virtual deposition experience has opened practitioners’ eyes to available tech, and has prompted them to find novel ways to formally swear in witnesses or stipulate to the record that still comply with the state and federal rules.

A template for the future may be found overseas. Attorneys in East Asia took up virtual deposition practice remarkably easily when the virus first expanded into Hong Kong and Singapore, in part because that region is already so enmeshed in technology, said Billy DiMonte, co-founder of legal
court reporting and litigation technology company Planet Depos.

Twenty-first century clients expect tech-savvy representation, and American attorneys could learn a lot from their East Asian counterparts in that respect, DiMonte said.

“Over there, the attorneys are so proactive at coming to us with their problems and ideas for how we can make the tech work better for them,” he said. “Here, we have to go to the attorneys, show them all the technology that’s available.”

One thing’s for sure, according to Sungaila: Anyone looking to go to trial in the next year is going to have to be creative and experiment.

(Adds detail on industry practice for depositions, paragraph 6. )

To contact the reporter on this story: Porter Wells in Washington at pwells@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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