Originally published in Business Law Today, December 30, 2021.
If depositions are part of your legal practice, remote depositions are something you are likely used to at this point. As the whole world went into lockdown for the pandemic and travel ground to a halt, remote depositions became the only viable solution if we wanted litigation to proceed.
What originally served as simply a Band-Aid, however, quickly became the norm. Now, even as restrictions ease and more in-person activities are beginning to take place again, remote depositions are expected to remain the norm for both court reporters and attorneys. In fact, 83% of attorneys surveyed said that they expect at least one party in every proceeding going forward to participate remotely.
Remote depositions not only offer a number of benefits and advantages—they also help ensure that you can get the reporter coverage you need to capture the record and create a transcript in light of a workforce shortage.
THE CONTINUED RELEVANCE OF REMOTE PROCEEDINGS IN A POST-PANDEMIC WORLD
In the past year, we’ve become very comfortable working remotely. Once it was proven that many jobs could be performed as efficiently and effectively remotely as they could in person—if not more so—many people became reluctant to go back to the old way of doing things, particularly when the risks of the pandemic are still very real. In the world of depositions, this is true for attorneys, witnesses, and court reporters.
In addition to convenience, cost savings, and other benefits, remote depositions have come to play a significant role in offsetting the current court reporter shortage. When you opt for a remote deposition rather than requesting an in-person proceeding, you increase your likelihood of securing the coverage you need and that your case will proceed on your desired timeline.
THE BENEFITS OF REMOTE DEPOSITIONS
Remote depositions offer a number of concrete advantages over in-person depositions, from cost savings to better productivity.
Given the current court reporter shortage in our country (discussed more fully in the next section) and pandemic-related health concerns with in-person meetings and events, getting coverage for an in-person deposition exactly when you want it is no longer a guarantee. Opting for remote depositions greatly improves the chances that you’ll be able to secure court reporter coverage and will reduce the likelihood of delays and unavailability.
In terms of costs, the savings you’ll see when you participate remotely are significant. Remote depositions eliminate costly travel, whether that’s plane tickets or taxis across town. At a time when clients are analyzing spend more than ever and pushing back on bills, anything you can do to keep costs down will improve your client relationships and set you apart from your competition.
Many attorneys went into the pandemic fearing that remote depositions would make it more difficult to maintain control over the deposition room, but the opposite has proven to be true. Speaker view and spotlight functions actually make it easier to place the focus solely on the witness during testimony and eliminate other distractions. Additionally, attorneys are including language in their admonitions that describes the behaviors expected of all participants. In many instances the etiquette and behavior in a remote setting are also written into case and trial orders, setting the tone of civility, with a reminder of our ethical obligations. All this goes to say that remote depositions are truly the new normal.
Remote depositions also make it possible for lawyers to use their time more efficiently, because more work can be done in a single day. When everything was in person, it was common for litigators to conduct depositions around the country or spend hours commuting across cities and back to get to deposition locations. Remote depositions can be handled from anywhere, which gives you all that lost time back to be more productive, take on more business, and better serve your clients.
It’s also important to not ignore the quality-of-life issues that remote depositions raise. As many attorneys have adjusted to working from home in the past year and a half, we’ve gotten used to having a better work-life balance. Most of us will be reluctant to give that up in the future, and remote depositions make it more possible to maintain it.
Remote depositions allow everyone to be nimbler, which is crucial in a world where our day-to-day realities continue to shift. If we carry on doing things the way we’ve successfully done them for the past year, litigation will be able to go forward even if participants fall ill or the pandemic situation changes again. Of the very few depositions that are booked in person these days, a significant number of them of them cancel at the last moment because someone gets ill or has a concern around COVID-19, leaving everyone to scramble to arrange a remote alternative. These last-minute changes bring a layer of stress that few welcome in these times and is a strain on resources as alternate solutions are set in place.
If there’s truly a compelling reason for a deposition to take place in person, hybrid depositions are also an option. Hybrid depositions are where some, but not all, of the participants are remote. While these can be challenging from a technical perspective if they are not set up correctly, a few simple planning steps with your deposition provider can put that to right. A key step to success is knowing where everyone will be and what equipment they need, as well as working with a provider experienced in hybrid proceedings who has the knowledge to support and advise on best practices. The hybrid approach can also help address the challenges of getting a court reporter scheduled because, if necessary, they can be remote.
THE COURT REPORTER SHORTAGE
The court reporting industry is experiencing a shortage of reporters, and that’s not likely to correct itself anytime soon. The National Court Reporters Association predicted a critical shortfall of nearly 5,500 court reporting positions by 2018, and today, we’re seeing those predictions were accurate.
The court reporter shortage is mathematically certain to increase in the coming years. In March 2021, the National Court Reporters Association issued statistics saying the average age of a court reporter is 55, and according to the Speech to Text Institute, there are 1,120 stenographers leaving the field every year compared to only 200 entering.
Attorneys returning to work and expecting to have all their depositions in person may find it challenging to obtain reporter coverage. Remote depositions greatly improved the capacity of court reporters in the last year, and the same availability simply won’t exist once you start factoring in travel time and the other realities of in-person depositions. Remote depositions are a great option when looking to offset that shortage and get the deposition coverage you need, when you need it.
Moreover, for many court reporters approaching retirement, in-person depositions are far more physically demanding than most attorneys may realize. In addition to the transcribing part of the job that you witness, in-person depositions often involve lengthy commutes, hours spent at night preparing rough drafts, lugging mountains of physical exhibits, waiting in line to ship them back to the office, and other such tasks.
Remote depositions have changed all that for the better. Court reporters no longer have to invest hours in commuting, and digital exhibit sharing has eliminated the need for them to physically handle and label exhibits. Simply put, remote depositions are far less taxing on hardworking court reporters, enabling them to take multiple assignments each day as no time is wasted traveling from location to location. If they can continue to work remotely rather than returning to the demands of in-person reporting, it’s possible that many would be more inclined to continue working past the time they might otherwise have elected to retire, helping to stem the current reporter shortage. Pandemic-related health concerns only serve to further support many court reporters’ desires to continue working remotely rather than return to in-person work.
How you choose to schedule your remote depositions can also increase your likelihood of getting coverage despite the shortage. While certain depositions will always be full-day affairs, many are not. If you’re looking at a series of two-hour depositions, you might consider scheduling them back-to-back on the same day. The golden rules for scheduling are applicable now more than ever: first, schedule your proceeding as far in advance as possible, and second, make use of the available remote technologies that are designed to assist when all parties can’t be present for a deposition.
With all the uncertainties of COVID-19 and the remote work environment we are in, it’s unrealistic to think that things will completely go back to normal any time soon. Remote depositions are the new norm, and you should embrace all the advantages they offer.