Leo Tolstoy’s novel Anna Karenina begins with a frequently quoted observation: “Happy families are all alike; every unhappy family is unhappy in its own way.” Happy families, it seems, all enjoy financial security and mutual affection within their homes, while unhappy families suffer from any number of malignant causes.
Most difficult endeavors are the same. Ask any successful entrepreneur, sports champion, or high school valedictorian to describe their journey, and they invariably list the same factors: hard work, goal-setting, preparation, perseverance, and perhaps a mentor.
This was our experience when we asked Esquire’s network of national court reporters to describe the behavior of litigators who were able to successfully conduct depositions during the past year. For most litigators that meant conducting remote depositions, often held under trying circumstances as everyone coped with social distancing and other government health mandates fashioned in response to the COVID-19 pandemic.
We heard from hundreds of court reporters who collectively have participated in thousands of depositions — remote depositions, overwhelmingly — since March 2020. During that time, attorneys have been advised by judges, online trial consultants, and seasoned litigators on how to conduct successful remote depositions. But, until now, they haven’t heard from the court reporters in the (virtual) room, the individuals charged with creating an accurate record of every spoken word.
What we found, to borrow Tolstoy’s observation, is that successful remote depositions are all alike. The successful attorney behaviors identified by our court reporters turned out to be remarkably uniform. The attorneys used equipment capable of creating quality audio. They advised all participants to pause before answering questions and to not speak over each other. They spelled out unfamiliar words, and they knew how to manage the technology used to conduct the deposition. Along with a few other behaviors mentioned below, that’s really it.
One caveat: “Success,” to a court reporter, means creating an accurate record of the proceedings delivered on time. It doesn’t have anything to do with trial outcomes or any other strategic considerations that may be important to the attorneys or parties involved.
According to the survey, effective control over crosstalk during the deposition was the most frequently cited factor in creating an accurate deposition transcript. Nearly 92% of respondents called this factor “extremely important.” Also coming in at the top of court reporters’ “extremely important” factors were providing the court reporter with detailed information in the notice of deposition (87.7%) and ensuring that the court reporter has access to documents that are quoted during the deposition (84.3%).
The following attorney behaviors were described by survey respondents as “extremely important” in obtaining an accurate record of the deposition:
Court Reporter Impressions
Overall, most court reporters surveyed said they believed attorneys are doing a good job adapting to new technologies and translating in-person advocacy skills to remote depositions. Positive traits identified among attorneys centered around two broad topics: (1) steps attorneys are taking to ensure that the court reporter (along with everyone else) can hear the deponent’s testimony, and (2) steps attorneys are taking to provide the court reporter with information about the case in advance of the deposition. The latter behaviors included providing assistance with spelling party names, place names, and technical terms. It also included marking and uploading digital exhibits in advance, where possible.
What follows is a small sampling of the comments we received in response to our request for specific examples of attorney behavior that contributed to a positive deposition experience and an accurate deposition record.
This particular attorney was 10-15 minutes early, helped with spellings, clarifications, was mindful to not speak over the witness, and appeared prepared with pre-marked exhibits and thoughtful questions. It is extremely helpful when attorneys understand they are creating a record and are mindful of a court reporter’s purpose. We take the record, but we do not make the record.
I love an attorney who understands what a clean record looks like. I love an attorney who takes his own advice from the admonitions and doesn’t speak over the witness. I love an attorney who is conscious of how terrible their transcript is going to look when they consistently cut each other off. I love an attorney who doesn’t speak so fast he’s tripping over his own words.
It’s helpful when attorneys provide a full caption, including appearances, when they don’t tolerate crosstalk, and when they provide me with the exhibits ahead of time.
Demonstrates Technology Competence
It’s much better when the witness is up close talking to a laptop camera or similar. I’ve had this happen a few times, and it’s difficult to capture speakers from far away.
Sound quality is most important and an attorney attending with a headset always makes my job easier.
Joanne S. Lee
When attorneys speak slowly and clearly and face the computer screen while speaking and have their faces lit up and not the light behind them, that helps tremendously in getting down a clear record.
V. Linda Boesch
Sending exhibits in advance, ensuring one person is speaking at a time, utilizing a high-quality microphone!
Skilled With Digital Exhibits
When there is a document-intensive proceeding, it has been very helpful when the attorney has an associate or a paralegal to assist in that process. It also is very helpful when exhibits are uploaded to the box.com link prior to the deposition, Even if they are not going to use all the exhibits. If there are not too many exhibits, it is very easy to pop them in the chat and for the Reporter to download them from the chat before the zoom session ends.
Someone who helps the reporter produce a beautiful record: reminds witness or other counsel not to speak on top of them; knows how to screen share and annotate and introduce exhibits in order; puts exhibit labels on each exhibit; allows for a break every hour; respects the reporter’s hearing ability if there are noise interruptions and re-asks the question to get a clear answer.
The attorney stayed on line after the deposition was over and we went over all exhibits and unusual spellings. That is so helpful so I don’t have to waste time afterwards tracking down exhibits and spellings especially when the job turned into a rush.
Tami L. Barker
Having counsel who is identifying the exhibits when nobody else has a copy of them to clearly identify some identifying reference… especially when other parties are attending Zoom and don’t always have the benefit of seeing the exhibit. It’s a good idea for the CR when stating “Exhibit 1 is marked” to add the first page Bates number so all counsel can follow along. (obviously if the situation permits.)
Gina M. Shrader
We believe the survey results hold important takeaways for litigators seeking to efficiently obtain the most accurate deposition transcript possible under the most challenging circumstances.
First, be cognizant that remote depositions are a different animal than in-person proceedings. Speaking slowly, taking care to eliminate crosstalk, and constantly checking to ensure that everyone is on the same page are necessary to produce an accurate transcript. Second, preparation — always the hallmark of effective advocacy — is more important than ever for remote depositions. It means that litigators should be practiced and confident in operating whatever technology will be employed, that they set ground rules and adhere to them, and that they provide the court reporter as much information as possible in advance of the deposition.
Finally, we’ve seen that investments in technology will pay dividends during remote proceedings. All the experience and practice in the world won’t help if your microphone and network connection can’t reliably carry your voice across the Internet.