Before the pandemic, lawyers usually only had to remind people on filing to wear casual attire for a deposition, said Gino Brogdon Jr., general counsel at Miles Mediation & Arbitration and co-founder of the Dispute Resolution Platform. Fourth Party disputes. Now, as the legal industry embraces remote and hybrid depositions, lawyers must confirm the technical capabilities of a witness and ensure that annoying background images, such as a Confederate flag, do not compromise credibility. of their client.
“You walk into a deposition and your client comes up and they’ve got a huge Confederate flag behind them, it happens all the time,” Georgia-based Brogdon said. “This is something lawyers need to think about if they allow their client to zoom in [in during proceedings]. “
Indeed, Brogdon and other attorneys contacted by Legaltech News said that it is not their peers that they usually have to fear struggling with when filing remote or hybrid. Instead, lawyers said, additional preparation and patience is required to ensure witnesses have adequate software and Internet access that neither obstructs nor hinders proceedings.
Admittedly, the sudden switch to virtual depositions during the pandemic has not been a smooth transition for all lawyers, which means the challenges continue to persist. According to a recent poll from court reporting agency and software company Esquire Deposition Solutions, out of 721 litigators surveyed, 46% of respondents were not satisfied with the document management processes for virtual depositions.
In addition, according to the Esquire survey, 60% of those surveyed believe they will make more virtual deposits after the pandemic. But as virtual depositions may become a mainstay of the legal industry, technological incidents are not always the fault of lawyers.
“Some witnesses themselves don’t know the technology in depth, it’s not just the lawyer,” noted Michele Jacobson, partner at Stroock & Stroock & Lavan. “These are also the stakeholders you need to make sure they understand the technology and [know] if they have a computer configuration that will allow them to view documents on the screen. Some older depositors, for example, may not have an easy time with the technology. You have to care about it. “
And all technological errors not only introduce intermittent hiccups during a deposit, they can also influence the outcome of a procedure.
“Obviously, the quality of the camera image is important. If you have a statement in person, you can [count] on your videographer to get it right, ”noted David Stanton, Pillsbury Winthrop Partner Shaw Pittman. However, “if [the deponent] has a bad camera, the way the person appears in front of the camera can affect their credibility, ”added Stanton.
Yet, while hybrid and remote deposits introduce additional challenges for managing clients, lawyers have said that these potential obstacles do not outweigh the effectiveness of virtual deposits.
“I think our preparation has changed when using these technologies,” said Andre Webb, partner of German, Gallagher & Murtagh. “When you talk about preparing a client for a testimony, some of the things we used to do maybe need to be changed now. You kind of have to practice it because you might have some trouble. Your customer’s Wi-Fi may be stable, not having the correct [tech] to log in. It adds some extra stuff that you need to cover, but I think for the most part it’s manageable. It’s just a matter of doing it.