[author: James Drimmer]
A little over a year has passed since the COVID-19 pandemic caused the legal world to look towards remote depositions as an option to move litigation matters forward. In the months that followed the initial shift, I wrote two blogs addressing the remote deposition. The first focused on the particulars of remote depositions and how they take place, as well as the best practices to preparation. The second examined how things were going after six months under our belt with remote proceedings. This blog examines how the remote deposition has fared in terms of a “grade” after one full year in widespread practice and further anticipates where things are going from here, including the introduction and application of remote technology for dispositive proceedings like arbitrations, bench and, now, even jury trials.
Predictions About Remote Technology “Sticking Around” Appear to Be Accurate – Grade = A
Saying the words “new normal” when it comes to remote depositions is just… well, so 2020. It is far past the time to recognize that taking depositions in this manner should now be acknowledged as “normal”. Uniform acceptance of remote depositions was certainly the early prediction by the minority. Their opinions were quietly dismissed by their colleagues on the grounds that as soon as we can get back to in-person proceedings, the “remote thing” will go away. Eventually, when everyone recognized that the delay in litigating cases could potentially last an undefined and extended amount of time, many legal professionals jumped in with both feet. Everyone accepted one or more invitations in their inbox from remote deposition providers to test drive the options available. They tried it, and guess what? It worked!” Anticipated problems and practical challenges as to exhibit handling and connectivity were raised, addressed, and resolved by competent providers – and the process now seems more fluid than ever. It is an overstatement to say that, at this point, everybody “gets it” from a technology perspective. But the awareness and visibility into the remote deposition process has made it accessible to even the most technologically challenged.
A colleague recently posted on LinkedIn about some of the COVID-19 related restrictions being lifted. He effused happiness at getting the chance to see some of his clients in-person within his office for the first time in over a year and to do a lunch presentation, face-to-face. What was the topic for this “in-person” meeting? Remote depositions, ironically enough! Even though we are opening our offices to do business in person once again, this is far from a retreat to legacy ways of doing things. This is back to the future in its full glory. Based on the foregoing, we can expect that the remote deposition is here to stay, and those who predicted that this would be the case appear to have been quite correct. Grade = A.
Some Less Obvious Practical Advantages and Disadvantages of the Remote Deposition – Grade = B+
Some obvious advantages for remote depositions include the extreme flexibility added to the process for all participants including the attorneys, witnesses and court reporting professionals. This flexibility also translates into cost savings for all parties as well, with less travel-related expenses being incurred. Likewise, there are equally obvious disadvantages to the process that will never truly be overcome, such as the evaluation of a witness’ credibility and demeanor that lawyers benefit from observing in-person. There are some interesting, and less obvious, subtle benefits and burdens to the process that everyone should all keep in mind, including the increased civility between attorneys, the unique helpful application the remote deposition lends to certain types of cases, and dealing with the newly emerging concept of Zoom fatigue.
To make remote depositions work, an increased level of cooperation is required from all parties to the proceeding. As a result, attorneys must work together more readily when taking a deposition remotely than with an in-person proceeding. Exhibits are often exchanged in advance, schedules worked out ahead of time instead of depositions being unilaterally noticed, and the participants must work with third party witnesses to ensure their ability to appear. These housekeeping issues are now highly cooperative matters. Whereas in the past, such scheduling issues were often the subject of gamesmanship. Now that kind of capricious jockeying for position has no place in this new aged arena for remote fact discovery. More than ever, even during the proceeding, attorneys must conduct themselves in a more collegial manner. One of our attorney clients recently described the level of professionalism and courtesy displayed by all counsel in his last case with multiple remote depositions. Though the case was contentious, he mentioned that all opposing counsel looked out for one another in so much as if there were technical difficulties or if one party dropped their connection, they would immediately halt the proceeding, allowing for the lawyer to get reconnected and avoid any ex parte communication with the witness.
In addition to the increased level of civility, the remote deposition is particularly helpful in certain types of cases that you might not expect. For example, the document intensive case is now made safer from a health standpoint, and less complex with the use of a remote proceeding. The safety issue is obvious as lawyers, witnesses and reporters do not have to continually pass documents back and forth, risking potential COVID-19 infection. Additionally, the process is made smoother by having the capability to refer witnesses directly to sections of documents on the screen rather than having the witness look through a hard copy. Every lawyer has had the experience in handing the witness a document during a deposition and referring them to a certain line or paragraph on a certain page. What happens? Without exception, the witness takes the document from counsel, flips back and forth, comparing sections, sometimes for lengthy periods of time, reviewing the material so that he or she is not surprised by the forthcoming question. Opposing counsel are quick to fire off objections asking that the witness be given a chance to “review the whole document.” In these remote proceedings, when a subsection of a document is displayed on a screen, whether it is psychological or otherwise, neither opposing counsel or the witness tend to fight about its authenticity or the opportunity to read the whole document. This is a massive advantage in jurisdictions where the opportunity to depose a witness is subject to certain time limits and there is voluminous material to discuss.
One disadvantage of the remote deposition world is the growing body of authority around Zoom fatigue and the tiring effect of video calls. This is not ideal in an environment when you as an attorney would like your witness or client to put their best foot forward and appear sharp, present and engaged. Because video calls are extra taxing on our cognitive abilities, the witness and counsel must be mindful of this effect. A recent study published by Stanford University observes Zoom fatigue happens because video calls have an unnatural and excessive amount of eye contact. You are constantly seeing yourself and how you appear on camera while you speak; your mobility is limited and the cognitive load is much higher in video chats. All of this translates to a greater degree of concentration necessary for the witness to communicate effectively in the deposition environment, which is already, a nerve-wracking and highly unnatural experience. This challenge translates into the attorney taking additional time and measures to counterbalance the effect of Zoom fatigue in preparing their witnesses to testify, and the lawyer who fails to take the time does so at his or her peril.
Practitioners should weigh these subtle advantages and disadvantages when considering a remote deposition. Since the news is not all good, these matters deserve a solid but imperfect grade. Grade = B+.
Arbitrations, bench and…jury trials? – Grade = TBD
It was not a stretch that shortly after remote depositions were widely adopted, litigants began to use the same technology for mediations and even court hearings. More recently, entire arbitrations with full witness testimony, introduction of exhibits and arguments are conducted almost daily. The remote technology has applied well to these dispositive proceedings and now cases can move forward through arbitration instead of jury trial while pandemic issues such as vaccine distribution and safety measures at local courthouses sort themselves out.
The next piece to the puzzle to consider, however, is the conduct of remote jury trials. Is this even possible? There are so many issues to consider: juror attendance, juror attention, court rules, who handles and is responsible for the technology, etc. While virtual bench trials have taken place already because they are virtually identical to an arbitration, the jury trial is very much a new concept. There are anecdotal accounts of virtual jury trials taking place in New Jersey in short cause matters. Riverside County California recently issued local court rules for the conduct of virtual jury trials issued in its court houses. At least one case that recently settled before trial in San Francisco County conducted a hybrid voir dire where the jurors were placed into a virtual “jury box” and questioned while the rest of the pool observed the questioning. As jurors were dismissed, others were admitted to the virtual “box” to finish the questioning.
It is unclear how these early experiments with virtual jury trials will work out. There are many concerns with the attention of jurors split between court and what is going on in their immediate environment. Time will tell and we will be certain to report back once more data and practical experience is gathered and analyzed on this topic. Thus, we can only grade this issue with a “to be decided”. Grade = TBD.
The widespread success of using remote technologies to conduct legal proceedings such as depositions, hearings, and now even trials, is a welcomed improvement to the legal landscape. All players in the system will feel the efficiencies gained from greater flexibility in scheduling to the lowered cost barriers that result when lawyers are not restricted to conducting litigation in-person. In turn, this will provide more people with greater access to our legal system, which can only be a good thing. We look forward to future technology advancements, as well how they will apply to other proceedings such as jury trials. The future of remote proceedings most certainly looks bright and, in this sense, also deserves an “A”. Grade = A.