While much of the world stopped last year, depositions didn’t. Cases forged ahead and lawyers scrambled to establish new ways of taking depositions and handling proceedings that, for decades, had been routine.
As we emerge out of the pandemic, many of the pivots intended as bandages for uncertain times will become permanent changes to the way we conduct and prepare for depositions.
If you’re hoping things will just go back to the way they were, you’re probably out of luck. But if you follow these five tips, you’ll be ready to handle any deposition that comes your way in the post-pandemic world.
1. Expect Some, If Not All, Participants to Be Remote
Taking depositions remotely may have been standard as a stopgap measure when the world was forced to work from home, but now it is commonplace in the practice of law and likely will continue to be so. In a March 2021 survey, “Remote Proceedings in a Post-Pandemic World,” 83% of responding attorneys said that they would continue to participate remotely in depositions either occasionally or more often even after the pandemic. This is a stark increase from pre-pandemic times, in which 87% of those same attorneys reported that they either never or rarely participated in taking depositions remotely. We’re also likely to see a sort of hybrid remote/in-person deposition going forward, as 89% of respondents expected at least one party to attend remotely in the future.
In other words, remote depositions are here to stay. We should even expect some clients to demand it now that they’ve seen the drop in costs when you eliminate travel and other expenses related to in-person attendance.
2. Increase Your Focus on Security
Remote proceedings, and remote work in general, have raised new security concerns and required attorneys to be more proactive in implementing safeguards. In the survey mentioned above, 57% of respondents reported being more focused on and sensitive to the data security provided by deposition vendors.
Much like lawyers, cybercriminals didn’t slow down during the pandemic — if anything, they have been more active than ever. Attackers refined techniques to prey on the fact that people were working remotely, including more sophisticated spearfishing scams and a surge in ransomware attacks. This has made it even more critical to ensure client information and remote proceedings remain secure.
Given this heightened level of activity, many standard business tools like email don’t provide adequate security for exchanging sensitive client information or documents. The same is true of the many off-the-shelf web-conferencing tools that have become indispensable for remote proceedings during the pandemic. Not all platforms are created equal, and some require special modifications to meet ABA security standards. Ensure the one you or your vendor uses meets these standards. With proper setup and measures in place, you can be confident while conducting remote depositions or even a trial.
3. Make Sure You Can Securely Share Files
Exchanging exhibits during a remote deposition or trial is a crucial component that is often not addressed in web-conferencing tools. Additional accommodations must be in place for a way to introduce and distribute exhibits. Ideally, this solution mirrors the in-person paper process as closely as possible, such as each party getting their own “copy” of the exhibit, exhibits not being revealed until introduced and the ability for an exhibit stamp to be applied. These can often be addressed by an exhibit-specific tool used in conjunction with the web-conferencing tool.
An ideal tool offers a repository to stage exhibits prior to the proceeding — a place for you to privately assemble all potential documents you may need. During the proceeding, exhibits should be introduced, stamped and distributed to all parties with minimal effort. Most importantly, you will want to familiarize yourself with the software and test it in advance to understand all of its functionality.
4. Get Used to New File Types
Working paperless has become far more common as people are working from home. This leads to an increase in the use of native file types in legal proceedings. Exhibits routinely include files such as Excel spreadsheets, video, audio, CAD and more. Remote exhibit tools usually have the ability to load nearly any type of file and introduce it as an exhibit. However, just like web-conferencing software, not all exhibit-sharing tools are created equal. Make sure the one you select allows you to introduce native files. This not only saves time trying to convert files but also retains the integrity of the original file.
Even as we slowly return to in-person proceedings, there will be a place for these exhibit tools to facilitate the exchange of native files. Gone are the days of having to pass a flash drive around the table, hoping no one along the way has malware or manipulates the native files. Instead, the same exhibit-sharing tools can be used for seamless, secure delivery of the native files to every party involved, even if everyone is in the same room.
5. Hire a Videographer
In a world where most depositions and proceedings are likely to be at least partly virtual, video recordings are more important than ever. It will be important to ensure those recordings are admissible as evidence. Decisions are already surfacing that show that using the built-in recording features is not enough (Alcorn v. City of Chicago, Case No. 17 C 5859 (N.D. Ill. Aug. 20, 2020)). To receive a certified video recording of your proceeding, you will need a certified legal videographer.
The videographer will not only manage the logistics of recording the proceeding, but will also “ensure that a video deposition is properly recorded with established procedures to go on or off the record, limit noise and interruptions, address technical glitches, and frame the camera view on the witness” (cited from decision above). Additionally, a legal videographer can produce the recording in a trial-ready format that can be easily displayed in your trial presentation software.
What We Learned About Taking Depositions Remotely Will Drive Success Post-COVID
Many of the “new” tools lawyers are using for remote proceedings have actually been developed over many years. The pandemic simply expedited their maturity and wider adoption, resulting in a permanent change in the legal proceeding landscape. This change brings with it positive aspects such as access to remote witnesses, wider adoption of technology and better work-life balance with less travel.
Following the five steps above will put you on the path to deposition success in the post-pandemic world.