That is, do tech-savvy attorneys do depositions differently? We spoke recently with two seasoned litigators about how they take and defend depositions.
Damien Riehl has 15 years' experience as a technology litigator, and he is a software designer currently helping lead development of Fastcase’s research and litigation-analytics products.
Mike Rueckheim is a patent litigator and partner of Winston & Strawn LLP focused on representing clients in disputes involving complex technology patents, and he has more than 10 years of high-tech experience prior to law school.
For deposition strategy, we were curious about what they did differently in depositions that they felt contributed to their success. Some key themes emerged.
1. Realtime transcription is a clear advantage. Immediate access to a rough transcript is a must-have.
Despite the high value litigators place on realtime transcription and rough transcripts, realtime certified court reporters — especially reporters specializing in niche subject / technical fields — are almost universally scarce. Their services also come at a hefty premium.
Mike, who frequently takes and defends depositions, insists on realtime transcription in every deposition. “I can’t remember when I haven’t used it.” He says it helps him to track key branches of the interview, easily refer to statements from minutes or hours before, and decide whether he needs to explore a line of questioning further. “I think attorneys who don’t use realtime transcripts are missing out.”
Damien’s skill is an outlier. “I type at about 125 words a minute, so taking notes on my laptop was actually faster than realtime.” Having the capacity to capture testimony as it was being spoken allowed him to organize it better and annotate it immediately after a deposition. It also avoided friction if a client did not want to pay for a realtime-certified court reporter.
2. Silent, inconspicuous collaboration with remote participants or a second chair in the room offers multiple advantages.
Remote collaboration poses a big advantage, and if you’re already taking or defending a deposition via Zoom or Microsoft Teams, really, why wouldn’t you?
Damien suggests, “Inconspicuous collaboration with an in-house counsel is a good capability. If I’m taking a deposition, having 12 people visibly on my side can be intimidating. One person on my side is less intimidating. Therefore, the witness may be more forthcoming.”
Mike details a common collaboration scenario. “Sometimes you’re going to want a second chair attorney present throughout the deposition, but that isn’t always cost-effective.” It’s already common practice to call an associate to discuss something during a break, but if that remote person can see exactly what the witness is saying, they can augment the deposing attorney in real time.
Collaboration during a deposition adds value. Mike will typically leverage chat software, text messaging, and email, whether associates are listening in or not. “I’m not a fan of breakout rooms, I’m just a little distrustful of it. I like to have a completely clean cutoff discussion.”
3. Realtime deposition transcription and collaboration tools are secret weapons that augment your effectiveness and, when defending, the success of your witness.
Why bring more applications into a deposition when you’re already multitasking? If the new application consolidates tools, that is a plus.
Mike typically brings three screens to every remote deposition. “I’ll have my laptop screen running my Zoom window. Another screen will have my exhibit list and my realtime transcript. And then I’ll have my notes on another screen, so I’m multitasking and trying to come up with questions at the same time. So if there’s a way to streamline that, to simplify the multitasking for an attorney taking a deposition, it makes them more effective.”
A standard technique is remaining silent to allow a witness to volunteer additional information. Even better, appearing to operate solo can help you lower the adversary’s guard.
Damien noticed that while using his laptop (and furiously documenting testimony), witnesses seemed to open up more. “Early on, when I’d have the screen in front of me, that was viewed as putting a block between me and the opponent. But if the goal is to make the deponent comfortable, not intimidated by me, they can just chat almost like I’m checking my email. So, I saw it as more like a “feature,” not a “bug.” They might hang themselves by being more forthcoming.”
We’re thrilled to discuss these concepts with litigators, and we want to disrupt depositions-as-usual with the new advantage of using witness testimony in real time to search eDiscovery.