In his ground-breaking 2013 book Tomorrow’s Lawyers, legal futurist Richard Susskind predicted that technology would radically transform the legal profession within the next few decades. From automation of routine legal tasks to the emergence of new legal service entities to the virtualization of in-person proceedings, Susskind’s assessments about the likely evolution of the legal profession proved amazingly accurate.
Except, perhaps, for the slow pace of change. Having made a strong business case for why the legal profession should embrace the wider use of technology, Susskind could not have anticipated that it would take a global pandemic in 2020 to cause the legal profession to turn technology’s disruptive potential into a day-to-day reality.
The COVID-19 pandemic is a wake-up call to businesses and industries falling behind in digital transformation. For the legal profession, the pandemic is an opportunity to set aside comfortable, habitual approaches to law practice and consider with fresh eyes the benefits that technology can bring to lawyers and to their clients.
Remote Depositions Are Evolving
Although it has been nothing short of miraculous to see creative litigators use Zoom videoconferencing, as well as document-sharing solutions like Dropbox or Box, to conduct depositions and trials during the COVID-19 pandemic, attorneys have very quickly faced the shortcomings of adopting technology not created for the legal environment. These information technologies were not developed with litigation in mind. The tools currently being used to conduct litigation remotely were developed to aid collaboration within organizations of like-minded individuals — not for litigation between parties that have opposing interests.
Litigators rightfully object when, during an in-person proceeding, a witness’s testimony is subject to influence by counsel, by notecards, or possibly by a third party in the room. And yet during remote proceedings a witness with an Internet connection is potentially subject to influence by anyone outside the room, surreptitiously without notice to counsel. Professional ethics considerations and remote deposition protocols relieve a large part of the burden of monitoring remote proceedings for fairness, but wouldn’t it be nice if technology could provide more assistance than it does at present, if it could do a better job at simulating the positive attributes of in-person proceedings? For example, wouldn’t it be nice if technology could eliminate outside influences, or to direct the witness’s attention to a precise page — and only that page — in a critical document?
New Technologies Made for Litigation
Fortunately, the technology employed in today’s remote depositions are meeting those challenges. No longer limited to merely streaming video and audio, many platforms in use today have features that enable attorneys to make decisions about which documents to share with the witness in real-time. Attorneys no longer need to worry about security issues, costs and potential strategic disadvantages raised by the practice of sending paper copies of documents to the witness in advance.
While litigators have broadly embraced remote depositions, but within this group some are reticent to use remote technologies to conduct a “document-heavy” deposition. Some worry that managing a large number of digital exhibits during a deposition will be cumbersome and distracting. They worry about losing a litigation advantage if they are required to share documents in advance of the deposition — documents that might not be presented during the deposition. And they are worried that piecing together various programs to make it work won’t make it work well.
Then there are the administrative challenges that accompany the use of electronic exhibits. Exhibits must be organized, sometimes collaboratively, and stamped, manually converted to a file format viewable by all parties involved in the deposition, and stored in an accessible but secure location. These are not trivial concerns, particularly in high-stakes litigation among numerous parties who may not be comfortable with technology.
Finally, during a remote deposition, it is difficult for the attorney conducting the deposition to see exactly which part of an electronic exhibit the witness is looking at, or to limit the witness’s attention to a particular part of a document.
Addressing the Exhibits Challenge
These challenges have caused even the most technology-savvy attorneys to shy away from remote depositions when a large volume of electronic exhibits will be introduced during the deposition.
Certain platforms such as electronic exhibit management platforms have been designed for the single purpose of managing electronic exhibits during a trial or remote deposition, including multiple depositions in a large case. These platforms address the largest pain points for litigators conducting remote depositions: organization, ease of use during the deposition, distribution, and control over what the witness can see or do with a particular exhibit.
The platforms automatically suggest the next exhibit number and renames exhibits to a generic document number, and converts them to a common file format for the widest possible viewing audience. In addition, an attorney can allow the witness to annotate the exhibit and guide the witness through an exhibit by directing them to a particular page before asking them to review the document. All participants can see exactly what witnesses are viewing on their screens.
Meeting the Demands of Litigators
Litigation-specific solutions are much-needed improvements to general-purpose document-sharing technologies that, while workable in some use cases, do not neatly provide the safeguards and client advocacy features that characterize the traditional in-person justice system.
