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Videoconferencing has been used by courts for over 30 years and its use by law firms like other businesses has gradually increased. One use that has not been developed is the use of videoconferencing and other remote electronic means of communication for the attendance by lawyers at civil depositions. Although accurate statistics are not available at the federal or state level, court statistics and information from professionals suggest that as many as 20 million depositions a year take place in civil litigation across the country but few use video or other remote electronic means. Some manufacturers, telcoms and service providers have focused on the legal market, but most have not.
Lawyers would like to use this alternative but the failure of the industry as a whole to address the needs and concerns of the legal community have inhibited the use of the product or services available. The result is underutilization or non-utilization of a proven technology that could benefit the legal community, their clients, government, and the industry.
Approaching the legal market requires some understanding of the varying types of practice and needs of attorneys. The expansion of this vast market requires a knowledgeable and concentrated effort. The legal market contains various sub-markets including general business and administrative uses similar to any business: client communications; transactional negotiations; administrative and staff meetings; continuing education; etc.
It also has a unique sub-market of litigation including court and non-court activities such as civil depositions or alternative dispute resolution. Litigation can be further divided into the criminal / civil and the Federal / State court dichotomies. Within the civil litigation market there are sub-markets of intellectual property, probate, family law, small claims, complex civil, business litigation, personal injury, employment etc. and each may have its unique needs and special concerns. There are also sub-markets based on end users including civil and criminal courts, law enforcement, mental health, security, large law firms, sole practitioners etc. The accepted use of video in one area can be used to promote its use in others. Manufacturers and service providers can focus on a limited segment of the legal market while developing an overall approach to the legal community.
The Need and the Benefits for Video Depositions
The need and the benefit to lawyers of employing video in the deposition process is apparent to most lawyers who have considered the subject: cost savings to attorneys and their clients, increased productivity, increased billable hours, and improved trial preparation. Perhaps more important is the improved quality of life. As air travel, entry to most buildings, and cross town travel become major ordeals and stressful wastes of time, the alternative of taking the deposition from office or home becomes attractive and even essential. But such hassles are just the tip of the iceberg of advantages of attendance by remote electronic means and the disadvantages for current practice.
Consider the time consumed in handling the logistics of depositions which is compounded by the number of lawyers involved, the timing and trial court demands, the demands of other obligations and degree of cooperation of all involved. Often rescheduling a deposition is the equivalent to herding cats that may even result in an unnecessary and expensive trip to court. Add to that the rescheduling of travel, lodging and car rental arrangements, rearranging other commitments, planning for weather and other delays, etc. Somebody pays for all this non-productive and non-legal activity. But the cost regarding quality of life is greater. The choice for lawyers may be between 3 depositions in one day in the relative comfort of the office or 1 deposition in three days with the stress, expense and waste of travel. Not surprisingly, most lawyers would welcome the opportunity to attend deposition by video conference or other remote electronic means if they can be assured the advantages or perceived need for personal attendance can be satisfied by the video experience.
The Specific Needs of and Benefits to Lawyers
The industry must understand and address the concerns and needs of lawyers and tailor their marketing if it hopes to penetrate this market. Consideration should also be given to economic incentives and promotions to encourage lawyers and courts to use or expand the use of the technology. Most lawyers who have actually employed video conferencing in taking or attending depositions have been more than satisfied. Those who have not have reasons and concerns that prevent their exposure to the benefits of technology and which must be addressed. The industry must also understand that depositions differ and that the need for lawyers to attend personally will vary with each.
Decision Makers and Users
The industry needs to focus both on decision makers and users. In any organization there are decision makers that are not always obvious: managing partners, executive committees, influential partners, IT managers, judges, court administrators, sheriffs, mental health workers, etc. Even when decision makers are reached the product will not be used unless the workers embrace and have the opportunity to use the technology.
In the legal deposition market this means the average trial lawyer who is taking the depositions on a regular basis. In a court, it means the lawyers who are appearing on motions and the judges hearing those motions. In means the lawyers and judges doing settlement conferences, mediations, and even trials. It includes those conducting or participating in alternative dispute resolution outside the courts.
Once the workers begin to employ the technology, the industry will achieve critical mass in the legal market and the video conference and videophone will supplement if not replace the telephone. These workers can be reached in a variety of ways including continuing legal education programs. Other decision makers that cannot be overlooked are those who pay the hotel and travel bills for lawyers to attend depositions: insurance companies, clients, corporations.
Numerous forums for addressing lawyers are available such as local, state, national and special interest bar associations, litigation sections, legal tech programs for lawyers and for courts, continuing education seminars, in-house presentations, court reporters, law librarians, legal publication, etc.
The legal market is vast but untapped. Isolated company efforts are unlikely to penetrate the market or assist the legal community in understanding and using the products and services available. Although technology advisors and company efforts are valuable, their scope and impact are limited. Competitors within the industry can benefit from a growth of the market. A joint effort may be more beneficial to each participant than a go-it-alone policy. By sharing statistical information and coordinating efforts, the industry can benefit from cross fertilization of use as the administrators, continuing education gurus, and transactional lawyers share their experience and expertise with the litigators.
Anticipate and Counter Obstacles to Use with Positive Promotions
Practicing law is more than a full time job and most lawyers lack the time or interest to actively seek ways to change proven and established practices. Any attitudes or misconceptions by lawyers that inhibit use of video must be collected, analyzed and remedied as part of an ongoing process. The industry must clearly demonstrate in a short presentation that the technology promoted is easy to use and reliable, that it will simulate or surpass the benefits of personal appearances at a deposition, that it is cost effective and that costs can be spread among alternative uses in the law firm or that other costs such as video recording can be reduced. The expressed desire to be present at the deposition may have or include unarticulated reasons such as a desire to maintain social or personal contacts with opposing counsel; such contacts may be fully justified but not relate directly to the deposition process itself e.g. a desire to bring up settlement or other litigation issues in an informal setting. It may be necessary to probe to enable the lawyer to determine the real reasons why the lawyer perceives a need to be physically present or determine there is no valid reason. The industry must be aware of and be prepared to address the different types of witnesses and recognize different needs of lawyers as well as needs and resources that may vary depending on law firm size, type of practice and technological sophistication.
About the Author:
Richard E. Best is a Private Judge, Discovery Referee & Consultant and Adjunct Professor of Law who served in the San Francisco Superior Court from 1974 to 2003.
He is an adviser to the Executive Committee of the California State Bar Litigation Section and a member of its Rules Committee. He is a past chair of the discovery subcommittee of the rules advisory committee to the California Judicial Council where he formed a committee of lawyers and experts to consider rules on electronic discovery and authored legislation and court rules regarding evidence, discovery and civil procedure. He publishes a website on civil discovery and can be contacted via email: Best@Justice.com.