Is doing things remotely a benefit for lawyers? Ask the Lawyer ...Middle East

Q: We are parties in a lawsuit. There was a court hearing that our lawyer handled over the computer. There was just a deposition, same thing. Is this a good thing?

K.C., Santa Ana

A: I encourage you to ask several attorneys because you may get different responses. Clearly, it is convenient to be able to avoid travel to and from court, and not have to pay for parking. It also can save the client money because the attorney’s time probably is reduced. Likewise, a deposition that can be taken remotely provides that convenience and economics as well (and you can watch the deposition over your computer in the convenience of your home or office).

There are aspects of doing things remotely, however, that concern me. There is a lack of immediacy. For years, I went to court and when argument was made, it was directly to the judge. For me, it not only feels different when done remotely, but also, the court proceedings at least some times lack that personal impact. We are a screenshot seen by the judge.

As to a deposition, you may lose the full ability to observe how the witness is acting. It is possible you only see the witness from the chest up, and you do not see the lawyer, or you only see the witness and the lawyer. You may see some of the others in the room, but not all, if others are in attendance. Further, you can miss some of what is going on between the witness and their attorney, because you are not there. In sum, what you see over the computer screen with a deposition often is not the full picture, at least in my experience.

Thus, there are advantages to being able to do a number of tasks remotely when handling a lawsuit; but I would not say it is without any disadvantage. Often. there is a choice — the lawyer can go to court, even if they may be one of the few lawyers in the courtroom, and the lawyer can choose to take the deposition in person. This decision making should be talked out between the lawyer and client.

Q: Is there some big advantage to videotaping a deposition as opposed to simply having it transcribed?

K.S., Hermosa Beach

A: It will cost more to videotape the deposition, but there can be good reasons (both practical and strategic) that make a videotape useful and important.

For example, reading from a deposition transcript to impeach a witness at trial may not be as meaningful or effective compared to showing the actual person speaking; the trier of fact can then observe the person’s attitude, facial expression and tone, thereby better assessing his or her credibility. In some instances, the witness may not be available (it could be an elderly person who is too ill to attend the court proceedings).The videotape should present that person more directly than reading from a transcript. Bottom line, the videotaped version preserves his or her testimony which can be seen and listened to, not simply listened to as spoken by a third person.

And if the deposition goes particularly well for your side, having the videotape could provide further leverage for settlement. The videotape also can assist the lawyer in determining how best to approach that witness at trial.

Note that you are required to give timely notice to the witness if you are going to videotape the deposition. A typed transcript will still be available as well, so you will have both.

Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.

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