Embracing the Remote of It
The Pandemic Showed Us That Virtual Is Better
For nearing two decades, I had spent more of my professional time on the road rather than seated in an office. I traveled all over the United States — sometimes to five different states in one week — for depositions, mediations, hearings and trials. I had a “go bag” for my travel that remained packed. Enter the pandemic. It all stopped. Suddenly, I was seated at a desk in my house on one remote platform or another for more than two years. Suddenly, I was always in town and could not find my “go bag” if my life depended on it. But also suddenly, I had found time, saved case expenses and transitioned to a paperless office. Suddenly, all I really needed for my legal work was a computer and internet access.
Now, more than two years after the world stopped in March 2020, do we go back to the pre-pandemic normal, or do we embrace all or part of the new remote world we created? I say we embrace it, and here’s why.
Service By Email
Before the pandemic, at least in state court cases, most people served everything by the good old United States mail. Enter the pandemic. Enter mail delays and lag times and an eventual move to mostly service by email. Service by email is permitted by the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. § 1A-1, Rule 5(b)(1) (“Service may also be made on the attorney by electronic mail (e-mail) to an e-mail address of record with the court in the case.”) It is also permitted by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 5 (b)(2)€ (“A paper is served under this rule by: … sending it to a registered user by … sending it by other electronic means that the person consented to in writing[.]”). Suddenly, most service was by email versus United States mail, and this streamlined the idea of a paperless office — from having to scan in and save paper documents to a true paperless office where no paper is ever created. Suddenly, you get almost everything by email and can just save it.
Why change this new remote benefit? Is there anything that can be gained by putting paper in the mail versus sending an email other than the expense of postage? I cannot think of the benefit. If you want the paper document, print it out
Beginning in March 2020, people stopped agreeing to be in conference rooms together. Instead, depositions, if they happened at all, were remote. Lawyers who had relied on staff to get what they needed from the internet suddenly had to learn how to remotely take and defend a deposition online — and they loved it.
The benefits of remote depositions are many. They include cost savings and found time, which translate into lower case expenses, the ability to push cases faster to conclusion and more room to negotiate when negotiations occur.
They require no travel time or expenses. For a remote deposition, neither you nor the witness must travel anywhere, which saves you time and cost. There is no need to pay the airfare or hotel or rental car fees for your travel to out-of-state depositions. There is no need to pay for your gas to and from out-of-town depositions. In a major case with multiple out-of-state and/or out-of-town witnesses, this can save the case thousands of dollars.
Saved time and money translate into faster-moving cases and more money for clients. My experience has most often been in the medical malpractice arena in cases where dozens of expert witnesses across the nation are identified and must be deposed. In a recent case, 44 experts have been identified and rebuttal experts have not yet been identified. These depositions can mean astronomical case costs and months of depositions. Enter the pandemic. Suddenly, every dollar usually spent on airfare, hotel and rental car expenses for expert deposition travel is saved. Suddenly, there is more room to negotiate at mediation because those expenses are now not coming out of what the client gets. Suddenly, every second of travel time can be instead spent on moving the case forward. Suddenly, you can take a dawn-to-dusk deposition and get up from your desk in your house and go to bed versus getting up from a conference room table, traveling to the airport, getting on a plane, encountering delays and, hopefully, getting home by the next morning. That is a benefit.
Those not comfortable yet with remote depositions will list the following reasons remote depositions are not better: remote exhibits are hard, you cannot see what opposing counsel is doing, you cannot look the witness whose deposition you are taking in the eye, you cannot be in the room with your own witness and the court reporter must swear in the witness. These are valid points if you do not prepare. But not if you do.
Remote deposition exhibits are easier than you think. Some court reporting agencies will try to charge you for expensive concierge and remote exhibit deposition services. You do not need them. The court reporting firm we hire permits us to upload or email exhibits to them at any point before or during the deposition. When we want to show an exhibit, we simply say the next exhibit number and identify what we would like shown and the court reporter puts it on the screen. The reporter even scrolls up and down on the exhibit when discussion of the exhibit moves to a different page. I can tell you this process works, as I have used it in 70 remote depositions in a birth injury medical malpractice case, including taking the depositions of expert maternal fetal medicine and obstetrician expert witnesses regarding fetal monitoring strips that span nine separate exhibit subparts. Once you get the hang of it, it is so much easier than dealing with paper documents and the bonus is that the exhibit appears on the screen with the witness in a ready-made video if necessary for trial.
You can see what opposing counsel is doing. We have typically agreed by scheduling order or otherwise that during remote depositions all persons in attendance with the witness must appear from a separate screen. This requirement permits you to see what defense is doing at all times during your deposition and might prove interesting. For instance, if you keep your screen on gallery view versus speaker view, you will be surprised at what you might see. I have seen a defense counsel shaking her head “yes” or “no” to coach the witness as to what the right answer should be, among other interesting antics. Regardless of what the antics were, I have seen them and have been able to identify and correct them on record, just like I would have been able to do if I were in person with the witness and opposing counsel.
You can look the witness in the eye. While you are seeing your witness across a screen, you are still looking him or her in the eye. When I first began taking remote depositions, I worried that I would lose something by not being in person with the witness — that somehow, we would not have that personal connection. In my experience, given the new remote world, within about five minutes of the start of a deposition, I have, and the witness has, forgotten that we are not across the table from each other.
Recently, I ran into someone at the NCAJ Fourth Annual Women’s Caucus Retreat, and we both remarked how great it was to see each other “again.” We then laughed, realizing that we had never met in person and had only met via remote platform. The remote world certainly does not replace the real world, but you can meet eye to eye virtually.
You do not need to be in the room with your witness. Let’s face it, friends. Unless you plan on coaching your witness, which is not permitted, you should not need to be in person with your witness for them to testify honestly.
This is where preparation is key. If you truly know your case and truly prepare versus mailing it in for your witness’s deposition, there is absolutely no danger in you not being in the room for your witness’s deposition. Whether or not you are present, you cannot testify for your witness — plaintiff, expert or otherwise. They, at the end of the day, must testify for themselves. You being present — as amazing as you are — will not change that.
What I have learned through the many remote depositions of my witnesses — plaintiff, expert and other witnesses alike — is that preparation is key. Just like sending your child out into the world for the first time — all you can do is prepare them for what might happen and hope that they remember what you have told them. Remote depositions have forced me to think of the questions opposing counsel may ask well in advance of my witnesses’ depositions and to spend more time than I previously did preparing my witness for questioning. I have found that it is my better preparation of witnesses for remote depositions and not whether I am present in person or not that makes the difference.
One word to the wise is to meet remotely with your witness prior to their deposition, on the day of their deposition. The reason this is important is that you need to see how they are dressed, see what is behind them and make sure that you know what they have on their screen other than access to the remote deposition, etc. You want to make sure that their video appearance is appropriate for the setting. I have suggested less revealing clothing because of the angle of a camera as well as the removal of personal prescription medication within view of the video, and the removal of alcohol bottles from a room, among other things. This is a conversation to have a few weeks before the deposition, but a check-in the day of is also important.
You can agree to have the witness sworn in remotely. The rules regarding witnesses being present with the notary swearing them in have changed over the past few years. To avoid issues, we have been agreeing with opposing counsel both in advance of the depositions and on the record through questions from the court reporter to have the witness sworn in remotely.
At the remote depositions, the notary asks the witness to show their driver’s license on screen to confirm their identity and swears them in for the record. The court reporting firm that we use also reads off a litany of stipulations, including that the parties agree to the remote format and to the witness being sworn in remotely, and asks that each participant verbally confirm agreement. In my experience, this process has always been agreeable to everyone involved.
I was a latecomer to the remote mediation process and very skeptical as to how it would work and whether it would be productive. It is.
Remote mediations enable everyone to gather at one virtual place sooner than you can ever get the same people to one real place. Remember the days when so-and-so adjuster could not be there or an adjuster had to leave early to catch a flight? Those excuses no longer fly in the remote deposition world and have gone by the wayside. You can have the captive audience you always wanted.
Remote depositions are less polarizing, especially in high-emotion cases where the client does not want to see the defendant in person. Gone are the days where you get everyone together in one real place only to find out in the first 15 minutes of the day that there is no offer or that you are so far apart that mediation will not be fruitful. Now, you can find that out in the same 15 minutes and be immediately back at your desk being productive on that or another case. Your client, also, is back to their day and not as angry as they would have been if they had traveled from another city to the mediation location.
And how does it work for the mediator to come in and out of your virtual room and opposing counsel’s virtual room? Flawlessly, as far as I can tell. The virtual rooms, much like real rooms, for mediations act as places you can speak privately with your client, engage with your mediator and then send the mediator out for further private discussions. It works just like a regular mediation minus the waste of travel time.
The vast improvement for you and your client is that you both are in your home or work environment and can do other things in the downtime that always occurs in mediation. While you can engage in meaningful case discussions, if the day draws long, both you and your client can do other things while waiting in the virtual room for the mediator to return. This can provide your client comfort during a difficult day.
As far as I can tell, virtual mediations are wins for everyone.
If there are detriments to a virtual mediation, they are that you are not in person with the people you want to have pay your client money. That said, often in-person mediations do not permit that because the adjusters are usually hard to get to the mediation location. Most in-person mediations require calls to someone not in the room because they were unable or unwilling to coordinate the travel to get there. The benefit remote depositions bring is the requirement that everyone be in the room, remotely. You are — perhaps more than before this virtual world — speaking to the people who matter. If not, you are in no worse position than you were in person.
As with the other remote options in 2022 for lawyering, you do not lose much and perhaps gain by having remote versus in-person hearings. Your ability to present your arguments to the Court will be determined not by the format of the hearing — remote or in person — but by your preparation.
If you are permitted the opportunity for a remote hearing, take it. It saves the time and expense of travel and usually provides a sooner and more efficient opportunity to speak to your judge. You avoid an all-day calendar call for a simple issue, and you often can get everyone to agree on a remote hearing date before you could schedule an in-person date.
The other benefit I have found from remote depositions is that our heads fill the screens. This enables you to truly be more eye to eye with your judge in your presentation than in an in-person hearing where you are at a podium across the room. You are truly speaking to the Court versus projecting across a room to a person above you on a bench.
If you can get over the fact that you are arguing through a screen versus — as you are used to — from a courthouse podium, you have an opportunity for direct communication at a time specifically reserved for your case. Like anything else in the legal realm, if you prepare, if you practice for this new venue, you can make it work for you and your clients.
Other than that you are not in person, the detriments of remote hearings are mainly logistic hurdles. As an example, if there are things you would like the Court to consider that you would normally hand up on the day of the hearing, you must coordinate to provide them to the Court in advance of the hearing. Also, if you are doing a minor settlement hearing or other hearing that will involve the sealing of certain documents that must be reviewed by the Court, you will need to coordinate a way to confidentially provide the documents to the Court for review at the time of the hearing.
Embrace the remote of it. Saving time and money in your cases will translate into faster-moving cases, less overhead and more money for your client. The small losses, if any, of going remote are far outweighed by the found time and money of doing so.
If you have any questions about how to handle any of the new remote ways to practice law, feel free to reach out to me at firstname.lastname@example.org or 919.636.5100. Once you see the benefits in your own practice, like me, you will be hooked.