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Instant messaging has tens of millions of die-hard users, but few big fans in the legal scene. That’s understandable; most older lawyers think of it as a way to gossip and to swap music files. But the teens are onto something. Instant messaging is changing how people are working and helping them save money. Instant messaging allows computer users to have instantaneous conversations, but instead of talking, the participants are typing. It is similar in style to Internet chat rooms, but more private in nature. The most popular programs are free, notably America Online’s Instant Messenger (AIM) and ICQ (pronounced “I seek you”). In the corporate world, Lotus Development Corp.’s Sametime offering is making inroads. Slowly though, instant messaging is entering the legal arena, especially for litigators. There are three vendors who offer remote depositions — the ability to deliver the text and video feed from a deposition over the Internet to a desktop computer. DepoCast from LegalSpan.com, DepoStream from realLegal.com, and I-DEP from I-DEP.com, are the three streaming deposition products; all three have built-in instant messaging. DepoCast and I-DEP feed both live audio and video across the Internet, while DepoStream sends just text. (RealLegal.com is a division of law.com.) As intriguing as this technology sounds, remote depositions aren’t meant for the lead lawyer in a deposition. It’s simply much harder to gauge a deponent’s demeanor, reactions, veracity and so on by text or video. But the services do allow more peripheral attendees to participate without ever leaving the office. And that’s where instant messaging plays a key role. All on-site and remote attendees can send private text messages to other participants on their side of the controversy. They can even enter objections remotely into the record. Instant messaging allows a senior partner to remotely assist an associate, and clients to feed questions to their lawyers. Likewise, a deposing attorney can ask a colleague to do some quick research on the fly, all without missing a step or showing his or her hand. THE POWER There is power in simplicity. Instant messaging is not much more than a scrolling series of written comments, much like a private real-time transcript. It is like a stealth layer of communication during key events — depositions, negotiations, conference calls and especially at trial. All people know is that someone is typing on his or her computer. Bob Berry, a partner with the litigation firm of Brinson, Askew, Berry, Seigler, Richardson & Davis, in Rome, Ga., recently used I-DEP for the first time. His client, a physician, was unable to otherwise attend a deposition held in another state. Berry needed his client to follow the testimony of an opposing expert: “[My client] provided me with questions and comments [via I-DEP's instant messaging] that were very useful. I was easily able to integrate the questions that I was receiving in the chat room with the questions that I was asking the deponent.” He also had others participating on behalf of an insurance company. “Because of the color coding of messages, I was [quickly] able to see who was communicating with me.” Berry also noted that it’s important to have other experts participate in real time, when the opportunity for their input is the most critical for asking the right questions. But when instant messaging is used in certain proceedings, there could be ethical or at least procedural implications: Who should be entered as making a formal appearance? Is there any prohibition about experts or other witnesses participating in, say, a deposition via streaming technologies and instant messages? Which communications are protected or privileged, especially where a trial expert is concerned? The normal rules still apply, and it’s important for the participants to realize that there can be a separate transcript maintained of all of the “instant chatting.” For example, if some of those comments made by a trial expert to the attorney relate to the formation of his or her opinion, then they may be discoverable. One of the best things about an instant message is that you know whether the recipient is online at the time. The programs shows who among your list of frequent correspondents — “buddies” in AOL speak — is actually on the Internet. With e-mail, you’re never quite sure when someone is even going to read it, much less respond. Instant messaging also is perfect for assembling virtual teams on the fly, regardless of location. Lawyers can engage in spontaneous discussions and file transfers in real time, because they know who’s available. Unlike e-mail, however, there is not a common language of instant messaging. The different messaging programs don’t speak to each other. While some vendors are working toward making the programs compatible, we are not there yet. Since America Online commands most of the consumer market with AIM and ICQ, some enterprise vendors, like Lotus, are making sure that they work with them. Others, notably Microsoft Corp., are trying to develop a vendor-neutral standard, presumably to break America Online’s dominance. Most of these messaging products are also not designed with lawyers in mind. But with the change in economic climate, many firms are looking to cut travel and other expenses. In this environment, instant messaging could become the next killer application. Of course, there is that pesky issue of being too wired to your work and clients. My solution? Like most communication tools, it does come with an “off” button. Jeffrey Beard is a legal technologist at Milwaukee’s Quarles & Brady. His e-mail address is [email protected].

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