Articles & White Papers

The Pandemic’s Likely Permanent Impact on Depositions

November 30, 2020

By: John D. Simmons

Our firm improved our operating efficiency by eliminating commute times when, in March 2020 at the beginning of the pandemic, we bought laptops for our administrative staff, and within a week, our entire firm was working 100 percent remotely. We were fortunate to have moved our computer system to the cloud in 2019 when we moved offices. Now, we spend our days on Microsoft Teams and Zoom calls. It has become the standard – no one wants to dial into a conference bridge.

Since that time, we have taken and defended depositions using Zoom through a court reporting agency, we have held court mediations and hearings by telephone, and we even have argued by telephone an appeal at the U.S. Court of Appeals for the Federal Circuit. At first, remote depositions, mediations and arguments were awkward. But, now that everyone has embraced the technology, we have recognized many benefits that likely will keep remote proceedings as a standard practice.

In the pre-pandemic world, depositions were some of the most expensive parts of a civil litigation. Deposing an opposing witness required flying to a remote location at least the day before and spending the day in your hotel room highlighting working copies of exhibits and revising your outline. You had dinner and breakfast in the hotel, and then you lugged your box of documents to opposing counsel’s office. Depending on how late the deposition lasted, you most likely spent another night at the hotel before flying back in the morning. Likewise, if you were defending the deposition, you would fly out early to prepare your witness and spend the same three days travelling, preparing and defending the deposition. Airfare, hotels, meals, Ubers, printing and shipping a box of documents, as well as three days of time, all add up to a pretty expensive deposition.

In contrast, we recently took the deposition of an expert witness who was based in Arizona. The deposition was done by Zoom with a secure browser-based document-sharing site. The deposition lasted only two hours. We started at 11 a.m., and we were debriefing via Teams by 1:15 p.m. The great part, besides not wasting three days of travel, was our expert also was able to attend (and not charge us for three days of travel himself) and give us technical advice during breaks. Further, there was no lugging of a box of documents from the hotel to opposing counsel’s office and no expense report.

We had the same travel-free experience preparing our expert for his deposition, with each of us sitting in our respective home offices during preparation and the deposition. We easily could search for documents, and the whole team could join the prep session to get educated, because we did not need to travel. This most likely saved the client about $15,000 to $20,000. While it is great to travel and interact with your client in person, it is hard to justify this added expense and the unbillable travel time.

Some of my colleagues assert that it is important to take a deposition in person so you can read the witness’s body language. Now that we have been doing this for months, this assertion rings hollow. Witnesses, attorneys and reporters all have quickly adapted to video conference calls and depositions. As long as the witness has a good internet connection and a decent webcam, the witness is looking right at you the whole time. Handling documents is much more efficient and accurate. The documents are already in electronic format, so you have access to the marked exhibits immediately following the deposition.

While travel for depositions may not be completely eliminated in a post-pandemic world, it will certainly be curtailed. Remote depositions have played a significant role in reducing litigation expense, improving participant efficiency and controlling relevant documents in the proceeding.

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