Note: This article is based on an April 22nd Womble Bond Dickinson webinar. Click here to watch the full discussion.
Remote depositions and mediations have been taking place for more than 20 years. As videoconferencing tools have improved (think Webex, Zoom, etc.), business litigators and their client have become increasingly comfortable conducting such sessions in a remote setting.
The COVID-19 crisis has accelerated the pace of conducting depositions and mediations via videoconference. Sessions that just a few weeks ago may have been conducted in person now must be conducted remotely due to public health concerns and related stay-at-home orders.
“In this era, we’re certainly looking at this,” said Julie Adkins, Senior Litigation Counsel at Southern Company Gas in Atlanta. “As this (shutdown) is more prolonged than some expected it to be, we are looking at scheduling some remote depositions this spring and summer.”
But whether litigators are videoconferencing veterans or first-time users, there are some issues they need to consider before conducting a remote deposition or mediation.
The Pros and Cons of Remote Depositions and Mediations
Womble Bond Dickinson Dispute Resolution and Litigation Team Leader Jim Cooney has conducted hundreds of depositions in his 36-year career as a business litigator. He also was an early adopter of videoconference depositions, conducting his first remote session in the late 1990s, when video glitches and audio delays were standard. The technology has greatly improved since then, Cooney said, and that means that remote depositions have become a much more viable solution.
Cooney said, “Remote depositions are 90 percent as good as being there. The key is finding where that other 10 percent lies.”
One disadvantage, he said, is that on a videoconference, it may not be possible to watch both the opposing counsel and the witness at the same time. Some nuances of attorney-client interaction and non-verbal communication can be lost in the ether. “I like to get a sense of how the room is playing,” Cooney said, adding that can be difficult to do via video.
Nicole Brunson, Associate General Counsel at Trane Technologies in Charlotte, NC, agreed that in-person provides certain advantages that can’t always be replicated in a virtual setting. “Sometimes, it’s the other attorney you want to assess,” she said.
For these reasons, many attorneys are more reluctant to conduct mediations remotely compared to depositions.
“Mediation is the only time you get to talk to the other side’s client directly,” Cooney said. “There’s nothing like being able to talk to the other side’s client, and remote mediation is a poor second option.” However, in the COVID-19 reality, it may be the only option available in some circumstances.
Other common questions and potential issues exist with remote depositions and mediations. Womble Bond Dickinson business litigation attorney Mark Henriques, who leads the firm’s COVID-19 Task Force, also said, “One area where I have been reluctant to use remote depositions for is expert witnesses.” This puts an additional responsibility on attorneys to select expert witnesses they feel they can work with in a remote environment.
Remote depositions require attorneys to prepare and submit their exhibits in advance. This requires extra planning, but it shouldn’t be a competitive disadvantage. The “Gotcha!” moment where an attorney dramatically produces a tide-turning exhibit may be a staple of TV legal dramas, but rarely happens in the real-world practice of law.
“You only get one shot at swearing in your first witness. But after a couple of people have been deposed, you have a pretty good idea where things are going,” said Womble Bond Dickinson business litigation attorney Jennifer Collins.
Remote sessions provide significant advantages, even beyond the current need for social distancing. Travel to and from an in-person session can be time-consuming and exhausting for an attorney, Cooney said. Remote sessions allow attorneys to focus exclusively on conducting the best deposition possible, he said, rather than making a connecting flight or hauling file boxes through an airport terminal.
“This might allow me to attend more depositions than I currently do,” Adkins said. “I’m excited about that potential opportunity.”
Remote depositions also offer significant costs-savings for clients, both by avoiding paying lawyers to travel and by avoiding the hard travel costs. With many in-house legal departments looking to reduce their outside spend during this economic downturn, shifting more depositions from in-person to remote can generate significant savings without significantly compromising service.
Strategies for Conducting Successful Depositions and Mediations Remotely
Remote depositions and mediations are an imperfect, yet useful, option for litigation attorneys and their clients. There are multiple tactics and approaches attorneys should consider in order to make the experience as positive as possible.
Brunson said there is no “One-size-fits-all” approach to conducting remote sessions. For example, a session could be a combination of remote and in-person, with the attorney in the room with her or his client talking to opposing counsel on a video screen. The person taking the deposition could be working remotely, while other participants are gathered in person.
Brunson also said the type of case can be a factor in the live vs. remote calculus. The higher the stakes for the client, the more likely the attorney is to want to conduct an in-person session. “For example, in personal injury, attorneys are going to be more inclined to go in person than in commercial disputes,” she said.
While videoconferencing technology has become both commonplace and dependable, it still can present challenges that need to be addressed well before the deposition or mediation.
Cooney recommends that counsel use a paralegal or other tech-savvy assistant to run point on managing databases, displaying exhibits, calling up documents and other technical needs that may come up during a session. Likewise, attorneys should coordinate with the firm or company IT department ahead of time to make sure the videoconference is ready to go for all parties. Collins recommends having access to a real-time transcript during a remote deposition.
Privacy and security are key components of this technical preparation. Clients expect that their attorneys are employing secure portals, and may even want to test them. Adkins said that she would prefer using her personal phone to make calls, rather than one provided by a deposition participant.
“You need to address security issues ahead of time,” Collins said.
Figuring out in advance what exhibits you will need, and getting them to the court reporter in advance may require new skills for attorneys used to making exhibit decisions on the fly. Everyone agreed that remote depositions require more preparation, and more discipline, that the traditional in-person appearance.
Ultimately, preparation, communication and coordination are an attorney’s best strategies for conducing successful depositions and mediations in a remote environment. No one can say for certain when the world will return to normal, but given the limitations imposed by COVID-19, mastering remote litigation strategies are valuable—perhaps even necessary—tools for companies, their legal departments, and the outside law firms they employ.