The use of remote depositions has spiked since COVID-related restrictions altered the landscape in early 2020, and many have predicted that this is the “new normal” for deposition practice. While the remote deposition is a newly honed “tool in the box,” it will not eclipse the tried-and-true in-person deposition—nor should it.
New Technology Changes Law Practice Quickly
Depending on how long you’ve “been around,” you remember the days when a typical lawyer’s office didn’t have a computer on the desk. The typing was done (loudly) down the hall, and hand-written entries on a paper calendar were the gold-standard for well-kept schedules. It’s jarring to remember that the first generation of the iPhone—that now ubiquitous accessory to human existence—was introduced in 2007. Tom Brady (who just celebrated his seventh Super Bowl victory) already had three Super Bowl rings when the iPhone came out. American Idol had already peaked. This was not a long time ago.
You remember the first smartphone adopters—with their PalmPilots and styli—perhaps you were one of them. The BlackBerry and its beloved QWERTY keyboard convinced many more to join the ranks of the thumb-typers, if only for low-res, on-the-go emailing. It was a slow revolution, until it was a fast one. It was of course the iPhone, with its intuitive operating system and simplify-the-complicated touchscreen flexibility, that brought the smartphone to the masses or, more accurately, the masses to the smartphone.
Steve Jobs and the iPhone have been case-studied and copied too many times to count, as have other mass-adopted “disruptive” technologies such as Uber, Twitter, Amazon and Netflix. New technology—if it catches on—changes life quickly, and the exotic becomes expected.[2] Ordering groceries, paying bills, renting a vacation home, making a dinner reservation—doing those things over the internet used to seem outlandish. Taking depositions over the internet used to seem outlandish as well.
Remote Deposition Pre-COVID
Prior to 2020, most of us in the litigation world had at least some level of experience with what I’ll call “semi-remote” depositions, usually depositions of limited-scope or limited-importance for which a questioning lawyer or other participants might appear by video or telephone rather than in person. Fewer of us had any experience, or comfort, with the idea of a “fully remote” deposition, where everyone involved has only a video feed: the witness is in Buffalo, the defense lawyer in Nashville, the plaintiff’s lawyer in Dallas, the court reporter in Philadelphia and the videographer in Oakland. Until quite recently, the prospect of a fully remote deposition seemed like an intimidating, complicated and possibly dangerous way to complete a task that we were perfectly comfortable doing the old way. Much like the first time someone suggested that instead of taking a late night cab from the airport, you should instead enter your name and credit card information into a smartphone app, authorize it to track your location via GPS, and then ask the app’s algorithm to summon a complete stranger in his or her personal vehicle to come pick you up and take you to your destination across town.
COVID-19 brought fast-paced change in seemingly every corner of life. The rules of the deposition game changed almost immediately. In a remarkably short period of time, fully remote depositions went from an option (if an unorthodox and seldom used one) to the only option.
“Crossing the Chasm”
The long-used “Technology Adoption Life Cycle” model divides tech users into five categories according to when they begin to utilize a new technology:
- Innovators (high-risk, high-tech users)
- Early adopters (enthusiasts eager to try something new)
- Early majority (pragmatists who will use a proven “better mousetrap”)
- Late majority (risk-averse users who see the new tool used successfully by others)
- Laggards (those who will only adopt the new technology when forced to)
Geoffrey Moore coined the phrase “crossing the chasm” in his book by the same name.[3] “Crossing the chasm”—the crux of technology adoption—occurs when a new tool takes the big leap from the early adopters to the early majority. Many technologies never make this leap, but when the early majority hops on the bandwagon broad-based acceptance follows, expectations change, and standards shift. Enter: “the new normal.”
The global COVID-19 pandemic brought remote depositions across the chasm, almost overnight. The stage was set, and the pieces were in place. In the world of 2020, lawyers, court reporters, videographers and witnesses were already well-positioned technologically, with camera-equipped computers and reliable Wi-Fi access seemingly everywhere. Many, if not most, even had experience with various video conferencing technologies, from corporate video conferencing to informal FaceTime chats with friends and family. The barrier to broad use of fully remote depositions was not hardware or software. The barrier was the unique nature of the deposition process.
Suddenly confronted with the prospect—indeed, the necessity—of fully remote depositions, lawyers of all stripes leapt forward with a common list of objections: Using exhibits this way will never work (no one really knows how the game is played)![4] What about my in-person interactions with opposing counsel (the art of the trade, how the sausage gets made)? Opposing counsel will never cooperate (diametrically opposed, foes)! What about managing the experience for my witness and all the non-verbal communication that will be lost to the video conference (the menu, the venue, the seating)? I can’t adequately examine a witness through a computer screen (no one else was in the room where it happened).
Indeed, remote depositions pose unique challenges. And yet, the success stories are stacking up. Lawyers have adapted, and depositions have gone forward, in many instances very successfully (Wouldn’t you like to work a little closer to home? Actually, I would).[5]
Remote Depositions in the Post-COVID World
But the widespread use and relative success of remote depositions does not mean that the initial objections to remote depositions were wrong or have all been solved. Those who objected to remote depositions on the grounds that the technology could not handle the task (or that the lawyer could not handle the technology) have been quieted. The other objections, though, are as true now as ever. Non-verbal communication is vitally important in assessing witnesses and opposing counsel, and much of it is lost in a remote deposition. It is harder to effectively defend a deposition—particularly a fast-moving, complex and document-intensive one—over video conference, and the risk of witness confusion is higher. In-person interaction—on the record and off—usually is an important piece of the puzzle.
Once you’ve taken the leap and tried a ride-hailing app or an online grocery delivery service, you may say: “I’m never going back to the old way.” You’ve discovered a better mousetrap. But remote depositions aren’t a better mousetrap. They are an innovation, yes, but not an innovation like ride-hailing apps. Remote depositions are more akin to paper plates: a convenient, inexpensive and reliable substitute that will never be as good as the “real thing.” Paper plates are perfect for some situations, and they save the day in a pinch. In some takeout-oriented restaurants, paper food containers may be the best tool for almost every application. But I’ve not read any articles predicting that “The age of the reusable plate is over!”[6] Paper plates have been around for a long time, they are inexpensive and useful, and we buy more of them every year.[7] But paper plates are not a better mousetrap. Traditional plates aren’t going anywhere. Neither are in-person depositions.
That said, remote depositions have at least one inarguable and huge advantage: saving the time and money associated with traveling to a deposition. This benefit assures that remote depositions will continue to be used, but we should use good judgment in deciding when.
3 Great Uses of Remote Technology
There are some contexts in which paper plate depositions may be an excellent choice, even when COVID-related restrictions are a relic of the past.[8] These include:
“Joe Friday” depositions
Dragnet’s no-nonsense Sergeant Friday famously asked for “just the facts.” Some depositions are straightforward, more checkers than chess. Perhaps the focus will be on deciphering some handwritten medical records, nailing down the timing or location of a particular event, or confirming the limits of a treating physician’s involvement in the care at issue. In these situations, connecting with the witness or judging their credibility may be less important to the case than just getting some questions answered on the record. Remote depositions work well for this purpose.
“Maybe” Depositions
Frequently, we need to make judgment calls about whether to move forward with depositions of marginal importance. Perhaps the question is whether the deposition is worth taking at all; in other scenarios there may be a question about whether a deposition can be delayed until later in the case, perhaps for cost-related or schedule-related reasons.
A remote deposition may offer the right lower-cost route to moving forward with these depositions.
“Getting the band back together”
In some depositions, the attorneys and witness already know each other well. Perhaps a witness is providing a limited update to previous testimony, or a frequently deposed expert is providing a case-specific opinion for the latest in a series of similar cases. A seasoned and straightforward witness may benefit both sides in this situation. Familiarity with opposing counsel is also critical. A good working relationship among the lawyers improves the prospects for these depositions, laying the groundwork for solid agreements on details like using exhibits.
Pre-deposition preparation
One area in which remote video has proven to be a major positive is in pre-deposition preparation with experts and company witnesses. Particularly when there is an existing relationship and rapport between lawyers and witnesses, conducting at least some preparation sessions by video offers several advantages. First, remote meetings allow the schedule to be tailored to the witness rather than the lawyer. So often witnesses are asked to give full days or large blocks of time to meetings when the lawyer is on site. But—for example—if an expert physician has trouble clearing a day for meetings but can be free from 8 to 9:30 a.m. Monday through Friday, this becomes an efficient and effective schedule—maybe even more efficient than a full day meeting on Friday. Likewise, a set of final one-hour video conferences with company witnesses the week before a big deposition may be more effective than a single full day. Meeting in person and building a genuine relationship is vital. But incorporating video conferences as part of a pre-deposition preparation schedule can be a significant benefit to witnesses, as it works quite well, and it reduces expenses. Of course, this tool has been available for years, but the COVID experience has revealed what a useful tool video conferencing is for prep meetings.
The “Real Thing” Is Still the Best Option
There are many contexts in which in-person depositions will continue to be a much better choice than remote. Perhaps the most obvious and common example is the predictably contentious, document-heavy deposition. Depositions like this—for instance, one that may include long, nuanced discussions of charts, tables and graphs from various pieces of medical literature—can get bogged down quickly over video. These depositions also require counsel and the witness to move from document to document, comparing and contrasting various pages, in a way that is very hard to manage over a video feed. As a questioning lawyer, you may be at the mercy of the witness’s cooperation or capability, rather than controlling the questioning effectively and efficiently. Defending the deposition, you may be left to constantly police opposing counsel’s confusing questions and chaotic electronic display of partially visible documents. Remote depositions are best when they serve the interest of efficiency; depositions like this are far less efficient when performed remotely.
Another category—particularly as the questioning lawyer—is unpredictable depositions. Frequently, I arrive at a deposition with 20 exhibits I know I will use and 60 that I might use, depending on how the witness answers certain questions and the general flow and feel of the deposition. Not only are the document management logistics of that approach more difficult over remote video, but this strategy thrives on the dynamics of an in-person deposition. Remote depositions are far more conducive to sheet music than improv.
Another critical factor to consider is witness support. A cooperative bond between witness and lawyer is best built in-person. We all know depositions can be stressful and confidence-sapping for witnesses. Spotting fatigue and taking a lunch or coffee break at the right time can be critical. Anxiety can spiral in isolation. A nervous witness may be reassured, seeing the attorney who led the prep meetings remain calm and collected. As lawyers continue to use remote deposition capabilities in the post-COVID world, it may be best in some depositions for the deponent and defending lawyer to be together, even if the questioning lawyer will attend remotely.
The Future
Among the lessons of 2020 was humility in making predictions about the future. With that caveat, it seems clear that remote depositions are a tool that will outlive the age of COVID-19, and their use will probably continue to grow. Still, the in-person deposition remains the superior choice in many contexts, and any predictions of its demise should be discounted. All the lawyers I talk to want to get back in the room where it happens. I do too.
1The Room Where It Happens, Hamilton: An America Musical. Performances by Lin-Manuel Miranda, Leslie Odom Jr., Phillipa Soo, and Jonathan Groff. Atlantic Records, 2015.
2Our collective generational experiences with rapidly changing tech norms are good for a laugh. My children giggle with recognition at Progressive Insurance’s recent “Dr. Rick” television commercials in which Dr. Rick seeks to help those who have become their parents (“If you printed out directions to get here today, you’re in the right place”).
3Geoffrey Moore, Crossing The Chasm: Marketing and Selling Disruptive Products to Mainstream Customers (3rd. Ed.) (2014).
4For the statements in italics in this and the following paragraph, see fn. 1, supra.
5In my own recent practice, I’ve found two advance considerations to be of particular utility in ensuring a successful remote deposition: (1) having a well-choreographed plan for using exhibits, whether sharing electronically or shipping tabbed notebooks to all participants ahead of time; and (2) proactively discussing expectations, arrangements, and agreements with opposing counsel well before the deposition (including concerns or plans regarding exhibits, time allotment, video settings, etc.).
6There is of course a separate environmental conversation to be had about paper plates, but that’s beyond the scope this article.
7United States Paper Cups and Paper Plates Market 2019-2024: Industry Trends, Share, Size, Growth, Opportunity and Forecasts, BusinessWire (June 27, 2019),
https://www.businesswire.com/news/home/20190627005651/en/United-States-Paper-Cups-and-Paper-Plates-Market-2019-2024-Industry-Trends-Share-Size-Growth-Opportunity-and-Forecasts—ResearchAndMarkets.com
8Another consideration that will continue for some period of time is mask-wearing. In a situation in which an in-person deposition is possible, but masks would be worn, a remote deposition may be preferable (especially a deposition that may be played to the jury by video) so that facial expressions can be seen.
Finis
