[author: James Drimmer]
A little over a year has passed since the COVID-19 pandemic led the legal community to look to remote depositions to fuel litigation. In the months following the first shift, I wrote two blogs about remote deposition. The first focused on the details of removed deposits and how to perform them, as well as best practices for preparation. The second looked at how things went after six months with remote access. This blog examines how remote deposition has evolved in widespread practice in relation to a “note” after a full year of widespread practice, and further anticipates how things will evolve from here, including the introduction and use of remote technology for dispositive procedures such as arbitration, arbitration and now even legal proceedings.
Predictions about remote stay technology appear accurate – Note = A.
Saying the words “new normal” when it comes to remote debris is just … well, 2020. It is no longer time to recognize that debris should now be recognized as “normal” in this way. The uniform acceptance of distant deposits was certainly the minority’s early prediction. Their opinions have been tacitly rejected by their peers on the grounds that the “distant matter” will go away as soon as we can get back to face-to-face procedures. When everyone finally realized that the delay in legal disputes could possibly take an undefined and lengthy time, many lawyers stepped in with both feet. Everyone has accepted one or more invitations from remote deposit providers in their inbox to test the options available. You tried and guess what? It worked! ”Expected problems and practical challenges regarding the handling and connectivity of exhibits have been addressed, addressed and resolved by knowledgeable vendors – and the process now seems smoother than ever. It is an exaggeration to say that at this point everyone is out of it more technological View “understands.” However, the awareness and visibility of the remote separation process has made it accessible to even the most technologically demanding people.
A colleague recently reported on LinkedIn about the lifting of some COVID-19 restrictions. He was pleased to see some of his clients in person in his office for the first time in over a year and to give a personal presentation over lunch. What was the topic for this “face-to-face” meeting? Ironically, remote deposits! Even if we reopen our offices to do business in person, this is anything but a retreat to old methods. This is back to the future in all its glory. Based on the foregoing, we can expect the removed deposit to remain here, and those who predicted it would appear to have been entirely correct. Grade = A.
Some less obvious practical advantages and disadvantages of remote separation – Grade = B +
Some obvious advantages to remote separations are the extreme flexibility that has been added to the process for all participants, including lawyers, witnesses, and court reporters. This flexibility also leads to cost savings for everyone involved, with fewer travel-related costs. Likewise, there are equally obvious drawbacks to the process that can never really be overcome, such as assessing the credibility and conduct of a witness that lawyers benefit from personal observation. There are some interesting and less obvious subtle benefits and burdens to the process that everyone should consider, including the increased courtesy between attorneys, the unique helpful application that remote segregation provides for certain types of cases, and the handling of the new concept emerging the zoom fatigue.
In order for remote depositions to work, an increased level of cooperation is required from all parties to the proceedings. As a result, when filing a deposit remotely, it is easier for lawyers to collaborate than with a face-to-face procedure. Exhibits are often swapped out in advance, schedules worked out in advance rather than one-sided notice of debris, and attendees must work with third party witnesses to ensure they can appear. These budgetary issues are now very cooperative matters. While in the past such planning problems were often the subject of game art. Well, that kind of capricious jockeying for position has no place in this new, aged arena for the discovery of distant facts. Even during the proceedings, lawyers have to behave more collegially than ever. One of our clients recently described the level of professionalism and courtesy shown by all lawyers in his most recent multiple remote separations case. Although the case was controversial, he mentioned that all opposing lawyers were paying so much attention to each other as if there were technical difficulties or if one party lost their connection they would shut down the case immediately so that the lawyer could be reconnected and avoid it any ex parte communication with the witness.
In addition to being more courteous, remote tipping is especially helpful in certain cases that you may not expect. For example, the document-intensive case is now safer from a health point of view and less complex thanks to the use of a remote procedure. The security issue is obvious as lawyers, witnesses, and reporters don’t have to constantly pass documents back and forth to risk a possible COVID-19 infection. It also makes the process smoother because witnesses can be referenced directly to sections of documents on the screen instead of the witness looking through a hard copy. Every attorney has had the experience of handing a document to the witness during a deposit and referring it to a specific line or paragraph on a specific page. What happens? Invariably, the witness takes the document from the attorney, turns the pages, compares sections, sometimes over long periods of time, and reviews the material so that he or she is not caught off guard by the question at hand. Opposing attorneys are quick to raise objections asking for the witness to be given the opportunity to “review the entire document.” In these remote proceedings, when a subsection of a document is displayed on a screen, be it psychological or otherwise, neither the opposing attorney nor the witness argue about its authenticity or the ability to read the entire document. This is a tremendous advantage in jurisdictions where the ability to depose a witness is subject to time limits and where there is a lot of material to discuss.
One drawback to the world of remote separation is the growing authority over zoom fatigue and the tedious effects of video calls. This is not ideal in an environment where, as a lawyer, you want your witness or client to put their best foot forward and appear sharp, present and engaged. Since video calls put a special strain on our cognitive abilities, the witness and attorney must take this effect into account. A recent study published by Stanford University observed that zoom fatigue occurs because video calls make unnatural and excessive eye contact. You see yourself all the time and how you appear on camera as you speak. Their mobility is restricted and the cognitive load during video chats is much higher. All of this results in the higher level of concentration required for the Witness to communicate effectively in the deposit environment, which is already a nerve-wracking and highly unnatural experience. This challenge results in the attorney taking additional time and action to offset the effect of zoom fatigue in preparing his witnesses for testimony, and the attorney who does not take the time does so at their own risk.
Practitioners should weigh these subtle pros and cons when considering remote deposition. Since the news is not all good, these matters deserve a solid but incomplete note. Note = B +.
Arbitration, banking and … litigation? – Degree = TBD
It was not a problem that shortly after the widespread adoption of distant testimony, the litigants used the same technology for mediation and even trial. In recent times, entire arbitration proceedings with full testimony, the introduction of exhibits and arguments have been conducted almost every day. Remote technology has performed well in these dispositive procedures, and now cases can be advanced through arbitration rather than legal proceedings, while pandemic issues such as vaccine distribution and security measures in local courthouses take care of themselves.
However, the next piece of the puzzle to consider is how remote jurors will conduct legal proceedings. Is that even possible? There are so many points to consider: presence of jurors, attentiveness from jurors, court rules, who handles the technology and is responsible for it, etc. While virtual banking trials have already taken place because they are practically the same as arbitration, the judicial process is very much much a new concept. There have been isolated reports of virtual trials taking place in New Jersey on brief matters. Riverside County California recently enacted local court rules for conducting trials against virtual jurors displayed in its courthouse. At least one case recently settled prior to trial in San Francisco County conducted a hybrid Voir Dire in which the jury was placed in a virtual “jury box” and interviewed while the rest of the pool watched the interview. When the jury was released, others were put into the virtual “box” to complete the interview.
It is unclear how these early experiments with virtual jury processes will go. There are many concerns about the jury’s attention, divided between the court and what is going on in their immediate vicinity. Time will tell and we will surely report on it as soon as more data and practical experience on the subject is gathered and analyzed. Therefore we can only rate this problem as “to be decided”. Note = TBD.
The widespread success of using remote technology to conduct legal proceedings such as depositions, hearings, and now even legal proceedings is a welcome improvement in the legal landscape. All actors in the system will feel the efficiency that comes from greater flexibility in planning the lowered cost barriers that arise when lawyers are not limited to litigating in person. This in turn will give more people better access to our legal system, which can only be good. We look forward to future technological advances and their application to other procedures such as legal proceedings. The future of remote access is certainly looking bright and deserves an “A” in this sense. Grade = A..