Cases these days seem to involve more paper than ever. While detailed documentation may generally be a good thing, it has also resulted in an additional seat at the deposition table just for all the documents. A decade ago you could walk into a deposition with a large binder full of documents and remain confident that you had every possible document that you might need for the deposition. Now, such assurances consist of several bankers boxes full of documents.
These bankers boxes of documents brought to a deposition seem to take on a life of their own. After we have diligently identified every last document, we spend hours printing them and making copies for every last person sitting at the deposition table. Then we painstakingly try to organize them in what we believe to be a chronological order. Once at the deposition you begin with everything neatly organized, then by the end you have skipped all over your outline and, if you were lucky, you were able to find all of the documents.
In many industries this process would be looked at as archaic. As a young attorney who is supposed to be technologically advanced, I was eager to move into the 21st century and take advantage of all technology has to offer; but, being surrounded by nationally-recognized, highly-successful attorneys who have been taking depositions for many years, I was hesitant to look foolish trying something so out of the ordinary. What I found is that practice makes perfect.
Consider how Exhibit type will best be presented
Not every deposition will be ideal to do as paperless. Depositions that involve a lot of medical records and corporate documents tend to lend themselves to the paperless deposition. However, in a deposition of an expert where many of the documents are medical and journal articles, you may be making things more difficult than they need to be with a paperless deposition. In a deposition where you are asking an expert to review a study and asking specific questions about the findings and how the study was conducted, the deponent in that situation will want to take time to carefully read the entire study and likely go back and forth between different pages of the study. In that situation, the paperless deposition can be a hassle. In a deposition involving experts, it’s important to make sure they are comfortable reading studies and articles electronically. The last thing you want to do is get to the deposition and be forced to print everything out last minute because the expert is only comfortable with paper.
The paperless deposition can be hugely beneficial with corporate fact witnesses or other fact witnesses where most of the exhibits are only a couple of pages. Most corporate witnesses these days are actually more comfortable reading things on a computer because that is part of their everyday experience. However, you still always want to inform the other side beforehand so that they aren’t surprised the day of the deposition and object. You could always bring one paper copy just for opposing counsel.
Cases involving large sets of medical records are also ideal for paperless depositions. However, make sure that your electronic version of the medical records are broken up into smaller sequences. If you plan on going through the records and asking about specific visits on certain dates, export the pages for that particular visit out from the larger medical record. However, if the deposition requires the deponent to review the entire hospital chart or something akin and testify as to whether something exists or doesn’t exist in the record, you may want to have that printed out for the witness. Thus, the paperless deposition requires quite a bit of advance planning.
Preparing for the Paperless Deposition
First, notify your opposing counsel that you intend to use electronic exhibits so that they do not object to the process at the deposition. For many attorneys it may be their first exposure to the paperless deposition and they tend to be skeptical of viewing the documents electronically.
Second, you need to determine what software, if any, you want to use for organizing the documents. There are many different types of software that you can purchase that will aid in organizing, labeling and presenting the documents electronically. Typically, the cloud-based systems are less expensive. One cloud-based software is eDepoze. It is a free deposition software with an iPad interface that allows you to securely upload the documents in advance; the documents remain confidential until they are shared and used at depositions in real time. Once the examining attorney uses an exhibit it becomes immediate viewable electronically to opposing counsel who is logged into the same program. The program also allows you to make notes on the document while still maintaining an official copy and to access all exhibits from other depositions as well.
One of the most popular apps to use is TrialPad, which has been around since 2010. This app is also cloud-based, so you import your exhibits in Dropbox or another similar app. There are endless features, including the ability to view documents side-by-side for comparison and add exhibit stickers to documents. While this app costs $89.99, it is the top-rated trial presentation app.
Before you decide to do a paperless deposition using any of these types of software, you need time. Time to prepare and upload everything but most importantly time to practice with the software and understand how it works and all its capabilities. This is not something you can start the week before the deposition. You need to practice. However, if you don’t have the time to learn a new software, you can also do the paperless deposition with just your laptop.
My first attempt at the paperless deposition involved only my Mac laptop and went far smoother than I expected. I uploaded all the documents that I could possibly use for the deposition in a folder on my laptop. Then I used Circus Ponies Notebook for the Mac for my outline, which allows you to insert links directly to the documents. This gets rid of the additional step of searching for the document in the folder when you want to pull it up as an exhibit. However, if you don’t use the notebook app and you have your outline in traditional Pages app, it’s best to have the documents identified by a Bates stamp number throughout your outline. That way you can simply copy the Bates number and paste it in the search tool bar and it will pull up that document from your folder. When using your laptop to show the exhibits, I have found it easiest to ask the videographer to bring extra computer screens — ideally, one for the examiner, the witness and opposing counsel. This way you can make sure you know what the witness is looking at. When you are using a Mac, the document pulled up on the main screen of your laptop is what the witness is able to see. However, if you swipe over to a different screen, you are the only one who can see it. One thing to consider is that the examiner remains in control of the electronic document, so if you think the witness is going to need to read through several pages of a long document at his or her own pace, this may not be the best option.
Finally, make sure your videographer is aware that you are using electronic exhibits. The videographer can help you determine the best way to electronically present the exhibits to the people in the room. You will either need them to bring a projector and screen for the exhibits to be displayed on or small computer screens that can be set up for the witness and counsel. Also ask the videographer if he or she has dual feed capabilities. This allows him or her to have one feed on the expert at all times and one feed on the electronic document at all times so that the video deposition will show both the witness and the document on a split screen.
Things to Remember
• Test your AV connections several times and make sure you know what AV connections will be available at the deposition site.
• Make sure you know your location. If you are using screens for everyone at the deposition table to view the documents, make sure that you are at a large enough table to accommodate all the equipment. Another very important thing to know about your location is its Internet connection strength. If your documents are located remotely in a cloud, you need to be sure that you will have access to them.
• Make sure you have several different options for accessing your exhibits. If you plan on accessing through a cloud app and need Internet, you may want to have them also downloaded onto a USB or external hard drive as a backup in case there are problems with the Internet.
The first time you walk into your deposition with just your laptop or iPad, you will surely feel like you forgot something very important. But, it will be freeing when, every deposition after that, you walk in with just your laptop and an iPad with the confidence that you have access to every possible document you could need.
Melissa Fry Hague is an associate at Anapol Schwartz in Philadelphia who has dedicated her career to the prosecution of mass torts with a focus on defective medical devices. She can be reached at 215-790-4563 or email@example.com.