Litigators Say Virtual Depositions Are Here to Stay

Going remote and working from home dominated headlines in 2020, and rightfully soovernight, we were forced to find new ways of doing things that had been established routine for years, if not decades.

With the pandemic stretching far longer than anyone initially anticipated, it should come as no surprise that some of what we thought of as temporary adjustments have become lasting changes.

Most lawyers agree that remote depositions are here to stay. In a recent survey by Veritext Legal Solutions entitled “Remote Proceedings in a Post-Pandemic World,” nearly 200 attorneys across a variety of practice areas and North American jurisdictions provided feedback on their deposition practices both pre- and post-pandemic, how they plan to handle depositions and proceedings in the future, and how the pandemic has created permanent changes in legal processes.

Survey Says…

An overwhelming 87% of respondents said they either never or rarely participated in depositions remotely before the pandemic. The pandemic drastically shifted this for the respondents. When those same attorneys were asked if they would continue to do remote depositions once the pandemic was no longer a concern, 57% responded that they would participate in remote proceedings often, very often, or all the time, and 26% plan to participate at least occasionally. Only 4% claimed that they would go back to strictly in-person appearances. Most respondents also anticipate that some portion of future depositions will be at least partially remote, that is where one or more of the attendees, but not all, participate remotelyin fact, an overwhelming 89% said they expect at least one party in every proceeding to be remote.

Now that attorneys and clients are comfortable with deposing witnesses and participating in legal proceedings remotely, it opens the door for attorneys to participate in proceedings they might have previously foregone, for example, depositions of ancillary witnesses that previously weren’t seen as worth the time and expense of the travel required. Virtual depositions also provide opportunities to expose junior associates to proceedings that they otherwise might have been excluded from due to travel costs or time, opening up avenues for development and learning. Of the attorneys surveyed, 34% agreed that they would likely be participating in more proceedings going forward if they could do so remotely.

The expected increase in remote proceedings isn’t only being driven by attorneys. Litigators also expect their clients to insist on more remote depositions now that they’re aware of the costs they can save by eliminating in-person attendance and travel.

Remote Depositions and Security

With the potential for even more remote depositions and proceedings on the horizon, it’s important to take the right steps to make sure these remote proceedings are secure and successful. Survey respondents agree, with 57% saying they’ve become more focused on and aware of the data security provided by third-party deposition vendors. Notably, 34% said they had always been extremely focused on vendor security, and would only work with vendors that met the strictest data security protocols.

Think about the steps you take to safeguard sensitive client information at an in-person depositionthings like limiting attendance, maintaining control of your exhibits until they are introduced, and so on. For a successful and secure remote deposition, you want to try to mirror that in-person process and all its security safeguards as much as possible.

You’ll want to ensure that you are working with a litigation support provider who is experienced in remote depositions. Vendors that specialize in remote proceedings will be well-versed in the security implications and will offer a platform with security features tailored to the legal community and the special needs of legal proceedings.

Other Tips for Successful Remote Proceedings

Here are a few things you can do to make sure your remote proceedings remain secure and have a successful outcome:

  • Understand the features of your tools. While you should always work with a vendor you can trust, make sure you understand the features of the tools you are using and practice using them before the actual proceeding. You do not want to inadvertently share something you shouldn’t just because you didn’t learn the tools in advance.
  • Control attendance. While your court reporter will act as the host, you will want to make sure the deposition attendance is secure and that only those who are supposed to attend have an invitation. A link to the proceedings should never be sent out or made available to a larger audience. Also, make sure you are in a private place and are using a secure internet connection. These measures will reduce the likelihood of interference from unwelcome or unauthorized parties.
  • Make sure you can securely share exhibits. While most videoconferencing tools include some mechanism for transferring documents, many do not necessarily do so securely. Make sure you are using a tool that allows you to introduce exhibits only when you’re ready to and in an environment that is secure.

Treating virtual depositions and hearings with the caution you would an in-person proceeding will go a long way toward ensuring that you maintain security. A large part of that is working with a vendor that is experienced in remote depositions and proceedings, and relying on their technology and expertise to safeguard the process.

Virtual depositions are no longer new, and they are not just a pandemic survival tool anymore. We have become accustomed to the increased work-life balance and flexibility that come along with working remotely, and attorneys, like most professionals, are not likely to go back to pre-pandemic ways. We can expect remote proceedings to continue long after the pandemic ends. By taking the right steps to ensure security, remote depositions can be an effective and successful part of your legal practice.

About the Author

Judith Kunreuther is the general counsel for Veritext Legal Solutions. Before Veritext, she worked for large and small law firms in NYC and New Jersey and was associate general counsel at EMCOR Group, a multibillion-dollar public company headquartered in Norwalk, Connecticut, for 10 years.

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