As the world goes remote, so do depositions. Litigators might want to make these virtual tools part of their cost-saving toolbox after "social distancing" comes to an end. Want to weigh in? Email me here. Want this dispatch in your inbox every Thursday? Sign up here.

 

The Depositions of the Future

In the vein of last week, I'm going to continue talking about how legal work gets done when we can finally begin to part with the "social distancing" measures that have defined our lives for nearly six weeks now. This is a hard time for all of us. Rather than dwelling in the present, a look to the post COVID-19 future gives us something to get excited about.

I'm also going to get into cutting costs. The "U-shaped" recovery that appears increasingly likely means that the economy is not going to immediately spring to life once we're told we can leave our homes to do more than exercise, walk the dog and go to the grocery store every two weeks. Reducing legal expenses had been a priority for clients well before the coronavirus upended their business models and projections for this year and beyond. That priority is now a mandate.

The expectation is also that businesses' litigation needs are going to surge, with fights over cancelled deals, insurance coverage and other disputes filling the courthouses. So how do we square the increased demand for litigators with tightened purse strings?

Shifting the costs elsewhere is one piece of the puzzle. That's why litigation financiers have been salivating about the anticipated opportunities to deploy their investors' capital. "There's been a lot of talk and way more inquiries than normal. But in terms of the number of firms that are actually signing documents, I haven't seen that increase," said Chris DeLise, the CEO and co-CIO at Delta Capital Partners. In a world where many litigators remain dubious of outside funding, finding ways to reduce the bills will make a difference.

One of the tools has been out there for a little while.

"The Federal Rules of Civil Procedure have allowed remote depositions for as long as I can remember," Geof Vance, the firmwide chair for Perkins Coie's e-discovery services and strategy practice, told me. "But it was always strange to me historically that no one really took advantage of the technology, especially when the technology involved videoconferencing."

Let's look at the price of traditional depositions. There's the air travel across the country, the hotel rooms, the rental of a conference room, the catering. Then add in hiring the videographer, and anyone else necessary to the set up. In comparison, the investment in video deposition technology is far cheaper.

"The cost effectiveness of it is compelling," Vance's colleague Jessica Everett-Garcia, Perkins Coie's litigation practice chair, added.

Up until now, that hasn't been a sufficient incentive. But now that in-person work of all sorts is off limits, litigators have been forced to adapt, particularly as courts and clients seek to keep cases moving forward. Everett-Garcia even has a bench trial scheduled for early May, and she's using videoconferencing software to prepare her witnesses.

"Now that we are forced into this new world, we have the ability to practice with the technology and rehearse," Vance said. "We are training daily, and I think what we're seeing is our lawyers are feeling really good about the technology, and realizing that they may be even more effective using this technology than before."

Neither of the Perkins Coie litigators believe the traditional deposition will disappear.

"Where you feel that you could be more effective if you're sitting across a conference room table from that witness, looking into witnesses eyes: there's a certain trauma to that right, there's a certain procession to it that doesn't feel quite the same over video," Everett-Garcia said.

And there are concerns to be resolved about whether the virtual deposee can try to cheat the system and bring in outside material to guide responses, though both believe this can be addressed.

The upshot is that open-minded litigation departments will have one more cost-saving tool to propose to clients. And now that they've seen it pulled out of the toolbox, it'll likely make a lot of sense.

In the News

➤➤ If we're to consider "virtual litigation" as a piece of legal innovation to emerge from the COVID-19 crisis, what else is in the works? Over at Bill Henderson's Legal Evolution site, guest poster Bill Mooz, the co-founder and interim executive director of IFLP, has a wider list: a growing gig economy for lawyers, regulatory reforms and a surge in automated contracts are just a few of the examples.

➤➤ I noted the Financial Times' COVID-19 legal "hackathon" here a couple weeks ago. Some of the submissions for areas to focus on include post-crisis contracts and a global "meta-database" of the different government policy responses.

➤➤ My colleagues and I have been diligently reporting on layoffs and salary cuts across the industry. It doesn't give me any pleasure to do this. It's just part of the job. Our reporter Patrick Smith took a look at the other side of this issue: how firms are communicating these critical decisions both to the media and to "internal stakeholders," if you'll allow me the jargon.

Wash your hands, keep your distance, try your best to stay sane, and you'll hear from me again next Thursday. Thanks again for reading, and please feel free to reach out to me at [email protected]. Sign up here to receive The Law Firm Disrupted as a weekly email. SHARE ON FACEBOOK