The National Law Journal

Winning Tools - Conducting Depositions Anywhere:
Internet technology can keep all parties to a case in touch

By Robert L. Berry and Jay M. Jackson
Special to The National Law Journal

ANYWHERE, ANYTIME. That's not the taunt for a fight, but the potential new battle cry for lawyers who take depositions. Cutting edge Internet technology now exists that allows law firms to conduct depositions without leaving the office, and provides all the benefits of having an entire litigation team at the deposition site.

The Internet deposition allows an attorney to join, monitor and even take a deposition live from any location with a personal computer, an Internet connection and the right Internet deposition provider. It allows the primary attorney to attend the deposition while others who are off-site, such as co-counsel or expert witnesses, join in via a live Web cast beamed directly to and from their computers.

The technology at the root of Internet depositions allows lawyers and their clients to see and hear the deponent through live streaming audio and video, to read the text of the court reporter's real-time transcript and to exchange messages discreetly for lines of questioning. Another feature is two-way audio, which allows off-site to on-site questioning of the deponent with better than cell phone quality. This feature also enables all participants to dial in by telephone. These features are all accessible in split frames on the computer screen.

Internet depositions are extremely useful for some or all lawyers involved in a multi-party deposition, in a deposition where a lawyer will not take the lead in interrogation, or in a deposition where a lawyer will question the witness subsequent to the first day of testimony. Similarly, a partner or co-counsel of the deposing lawyer can remotely monitor the deposition to look for particular answers and then suggest lines of additional questioning. This private communication allows the lawyer to enter objections and pose follow-up questions from off-site while seeing and hearing the witness.

For example, imagine the defense attorney is deposing the plaintiff's expert witness in Buffalo, N.Y., in a complicated medical malpractice case. As the deposition proceeds, the defense's expert witness in Atlanta sends comments on the answers of the plaintiff's witness, which appear at the bottom of the defense attorney's screen, allowing the attorney to expand the line of interrogation. Meanwhile, support staff scattered across the country retrieve and deliver crucial information their attorney needs during questioning via an electronic messaging system. This keeps the deposing lawyer fresh on the details of the case and on target during questioning. Secure transmission and display supplied by the Internet deposition provider ensures that opposing counsel and witness see none of this.

Restricting access
To participate in an Internet deposition, the deposing attorney and any other parties designated as permitted participants log on to the commercial provider's Web site. The lead attorney who has arranged the deposition will have distributed the case's password at his or her discretion.

Before the proceeding, the Internet deposition provider gives participants their own user ID and password and tests the participants' computers. The entire process takes only a short amount of time and is required only for a participant's first Internet deposition. Accessing online depositions does not require any special hardware or software, just a personal computer and Internet connection. Likewise, lawyers or other participants do not need any special training other than simple Web navigation skills.

Once logged onto the online deposition Web site, a lawyer can simply click on a button to attend a deposition. A security alert pop-up window confirms that no one else other than the predetermined parties can view and/or participate in the proceeding. Furthermore, parties wishing to attend are not allowed to do so anonymously or under a pseudonym. Firewall and Secure Socket Layer encryption technology prevent hackers or unwanted visitors.

Upon entering the case number and password, the Internet deposition provider verifies the level of access for which the participant is authorized relative to the case and its depositions. The participant is then automatically linked to a secure page containing a list of hyperlinks to all the current live, scheduled and archived depositions that he or she is authorized to access for that case.

The on-site setup for Internet depositions is simple. An Internet deposition can be arranged anywhere a traditional deposition would take place, provided broadband Internet access is available. Online depositions usually take place at a court reporter's office that has been approved through the Internet deposition provider. A miniature video camera is attached to a supplied laptop and records the witness, whose testimony is displayed as it happens. The deposing attorney and any remote participants see the image of the deponent In the top left corner of their computer screens while hearing the actual testimony through a streaming audio feed.

How it is done
The audio-visual component of Internet depositions is important because of its value in determining witness credibility end demeanor. In addition, the cybercasting technology is more advanced than traditional videoconferencing transmissions. So the picture clearer and the words are more audible. Underneath the video picture is the messaging area, where attorneys see the names of all participants monitoring the Internet deposition. They can also read either public messages posted to the entire group or private messages sent directly to them.

Meanwhile, on the right side of the screen, the court reporter's real-time transcript scrolls along as the words are spoken Real-time technology allows court reporters to convert their steno-graphic notes instantly into text. While the proceeding is in progress, associates, co-counsel or paralegals can begin marking obvious testimony points in the transcript for later review as well as adding notes to any section.

In addition, while the deposition progresses, litigators can instantly object to portions of testimony by clicking a drop-down menu with several types of objections, such as relevance, asked and answered, etc. The lawyer then clicks the "send" button and all parties both hear the objection spoken by a synthesized voice and see it appear in the transcript. Just like in a deposition where all parties are in the room, any objection made by a participating active attorney in an online deposition automatically stops the proceeding and any discussion, until the issue is resolved.

For those simply monitoring the deposition, the technology allows them to check on elements of the case simultaneously. As the proceeding takes place on users' Web browser screens, they can open and view other files on their computers without interrupting the flow of testimony and interrogation.

After the Internet deposition, participants have several options for receiving the transcript. In addition, access to the archived record of the proceeding, including video and audio synchronized with the transcript, is available quickly and conveniently via the Internet.

Advantages of videocasting
Archived transcripts from Internet depositions let participants or other parties working on the case to edit post-proceeding transcripts and video clips simultaneously, to prepare CD-ROMs, DVDs or VHS cassettes for use in trial -- essentially becoming trial presentation specialists using technology already at their disposal.

The tactical and financial advantages of Internet depositions are numerous and can free resources so as to enable a law firm or a solo attorney to deal more effectively with the overall caseload. Internet depositions help law firms and their clients save time in several ways.

First, Internet depositions provide an easy means to schedule, juggle and coordinate court reporters' and lawyers' deposition appointments. Even more important, online depositions eliminate the professional time that is wasted when lawyers, litigants or expert witnesses travel and wait through frequent airport or traffic delays and hotel check-ins, not to mention the numerous scheduling conflicts that are so common.

Internet depositions also curb travel costs. Sending just one attorney to lead the deposition on-site while partners, cocounsel, litigants or expert consultants participate remotely can save thousands of dollars spent on airline tickets, rental cars, hotel rooms and meals. In turn, this allows lawyers to reduce client costs. Take the aforementioned Georgia-New York deposition, for example. The defendant, a physician, follows the proceeding and has a direct line of contact with her lawyer at the deposition site. As a result of remote Internet access, the physician only needs four hours, rather than two days, away from her practice.

This benefits not only the insurance company covering the associated litigation costs, but also the physician, who does not incur any out-of-pocket expenses. The fact that the doctor is also available to handle patient emergencies and can keep routine appointments without rescheduling is an added bonus.

Prom a tactical standpoint, the Internet deposition service is easy to use and provides value by allowing the physician to see and hear directly what the witness is saying against her. This type of firsthand knowledge is helpful because the defendant can respond to clarify points and suggest follow-up questions to her attorney without actually being there. Also, the defendant can talk with her attorney without the physical distractions of passing notes back and forth.

Editing made easy
Also, online deposition transcripts are automatically synchronized with the streaming audio and video. So, when lawyers or other legal professionals edit the transcript for pretrial preparation of witnesses or to select significant portions for use at trial, they are also editing the video. This can save the firm and its client hundreds, if not thousands, of dollars in video post-production costs. Services such as these range from $100 to $125 per hour for analog video editing, with "rush" charges ranging from $185 to $200 per hour. For digital video editing, charges range from a one-time fee of $150 to $200 per hour.

Before the advent of Internet depositions, videoconferencing was used for looking at and participating in legal proceedings, Internet depositions require a lot less equipment, and are therefore much less distracting or intimidating to the witness. If the witness is more relaxed, it may be easier to obtain vital testimony. Online depositions eliminate the big video camera and lights used previously and also eliminate the associated cost of having a videographer to operate the equipment during the proceeding.

There are some situations where an online deposition may be inappropriate. Sometimes a traditional deposition is necessary for establishing a more personal relationship between the parties. Also, the video, although it is live and streaming, has approximately a five-second lag tag from the real-time transcript text. This is common with any Internet connection and is something that attorneys can adapt to quickly. But overall, Internet depositions can be an effective case management tool as long as the provider offers all the crucial elements for lawyers to utilize. If done properly, online depositions can provide litigators with a competitive advantage for their cases.

Foremost, remote participants must clearly hear and see the deponent. And if at all possible, a two-way, on-demand and audio feature that allows participants to speak among themselves and communicate with the deposition site should be a part of the Internet deposition.

Receipt of and access to the court reporter's real-time transcripts for key word or phrase highlighting and annotations is a must, as are all the necessary security precautions and the ability for participants to communicate through confidential messages. Options such as the ability to make instant objections with the click of a mouse are also an essential element of online depositions.

Finally, participants in Internet depositions should be able to access them without special equipment during the proceeding and easily cut and paste relevant sections of the final transcript afterward for pretrial review and preparation. Also, the Internet deposition provider should provide detailed post-deposition billing that reflects the number of all attorneys and parties involved and the type of access they had to the online proceeding.

While the gadgets available let Internet lawyers to be in relatively constant communication with home and office, there's no substitute for being there. Internet depositions allow lawyers to be in virtually two places at once, to save time and travel costs, to utilize advanced case management tools, to depose more effectively and evaluate associates' performance and the credibility of deponents all from their laptops. And maybe even accomplish all this from the beach!

Robert L. Berry is a partner at Rome, Ga.'s Brinson, Askew, Berry, Seigler, Richardson & Davis. He can be reached at bberry@brinson-askew.com. Jay M. Jackson is CEO of I-DEP^®, a provider of the first integrated streaming media Web-based deposition service. He can be reached at jmj@i-dep.com.

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