CIVIL DISCOVERY LAW
©Richard E. Best 2002-2003 All rights
reserved
THE NEED AND THE MARKET
for
LEGAL VIDEO DEPOSITIONS
THE MARKET FOR
VIDEO DEPOSITIONS
THE NEED
AND THE BENEFITS OF VIDEO DEPOSITIONS
THE SPECIFIC NEEDS OF AND BENEFITS TO LAWYERS MUST BE ADDRESSED
DECISION MAKERS &
USERS
INDUSTRY EFFORT
ANTICIPATE AND COUNTER OBSTATCLES TO USE WITH POSITIVE PROMOTIONS
THE MARKET FOR VIDEO DEPOSITIONS
Videoconferencing has been used by courts for over 30 years and
its use by law firms like other businesses has gradually increased.
One use that has not been developed is the use of videoconferencing
and other remote electronic means of communication for the attendance
by lawyers at civil depositions. Although accurate statistics are not
available at the federal or state level, court statistics and
information from professionals suggest that as many as 20 million
depositions a year take place in civil litigation across the country
but few use video or other remote electronic means. Some
manufacturers, telcoms and service providers have focused on the
legal market, but most have not. Lawyers would like to use this
alternative but the failure of the industry as a whole to address the
needs and concerns of the legal community have inhibited the use of
the product or services available. The result is underutilization or
non-utilization of a proven technology that could benefit the legal
community, their clients, government, and the industry.
Approaching
the legal market requires some understanding of the varying types of
practice and needs of attorneys. The expansion of this vast market
requires a knowledgeable and concentrated effort. The legal market
contains various sub-markets including general business and
administrative uses similar to any business: client communications;
transactional negotiations; administrative and staff meetings;
continuing education; etc. It also has a unique sub-market of
litigation including court and non-court activities such as civil
depositions or alternative dispute resolution. Litigation can be
further divided into the criminal / civil and the Federal / State
court dichotomies. Within the civil litigation market there are
sub-markets of intellectual property, probate, family law, small
claims, complex civil, business litigation, personal injury,
employment etc. and each may have its unique needs and special
concerns. There are also sub-markets based on end users including
civil and criminal courts, law enforcement, mental health, security,
large law firms, sole practitioners etc. The accepted use of video in
one area can be used to promote its use in others. Manufacturers and
service providers can focus on a limited segment of the legal market
while developing an overall approach to the legal community.
THE NEED AND THE
BENEFITS OF VIDEO DEPOSITIONS
The need and the benefit to lawyers of employing video in the
deposition process is apparent to most lawyers who have considered
the subject: cost savings to attorneys and their clients, increased
productivity, increased billable hours, and improved trial
preparation. Perhaps more important is the improved quality of life.
As air travel, entry to most buildings, and cross town travel become
major ordeals and stressful wastes of time, the alternative of taking
the deposition from office or home becomes attractive and even
essential. But such hassles are just the tip of the iceberg of
advantages of attendance by remote electronic means and the
disadvantages for current practice. Consider the time consumed in
handling the logistics of depositions which is compounded by the
number of lawyers involved, the timing and trial court demands, the
demands of other obligations and degree of cooperation of all
involved. Often rescheduling a deposition is the equivalent to
herding cats that may even result in an unnecessary and expensive
trip to court. Add to that the rescheduling of travel, lodging and
car rental arrangements, rearranging other commitments, planning for
weather and other delays, etc. Somebody pays for all this
non-productive and non-legal activity. But the cost regarding quality
of life is greater. The choice for lawyers may be between 3
depositions in one day in the relative comfort of the office or 1
deposition in three days with the stress, expense and waste of
travel. Not surprisingly, most lawyers would welcome the opportunity
to attend deposition by video conference or other remote electronic
means if they can be assured the advantages or perceived need for
personal attendance can be satisfied by the video experience.
THE SPECIFIC NEEDS OF
AND BENEFITS TO LAWYERS
The industry must understand and address the concerns and needs of lawyers and tailor their marketing if it hopes to penetrate this market. Consideration should also be given to economic incentives and promotions to encourage lawyers and courts to use or expand the use of the technology. Most lawyers who have actually employed video conferencing in taking or attending depositions have been more than satisfied. Those who have not have reasons and concerns that prevent their exposure to the benefits of technology and which must be addressed. The industry must also understand that depositions differ and that the need for lawyers to attend personally will vary with each.
The industry needs to focus both on decision makers and users. In
any organization there are decision makers that are not always
obvious: managing partners, executive committees, influential
partners, IT managers, judges, court administrators, sheriffs, mental
health workers, etc. Even when decision makers are reached the
product will not be used unless the workers embrace and have the
opportunity to use the technology. In the legal deposition market
this means the average trial lawyer who is taking the depositions on
a regular basis. In a court, it means the lawyers who are appearing
on motions and the judges hearing those motions. In means the lawyers
and judges doing settlement conferences, mediations, and even trials.
It includes those conducting or participating in alternative dispute
resolution outside the courts. Once the workers begin to employ the
technology, the industry will achieve critical mass in the legal
market and the video conference and videophone will supplement if not
replace the telephone. These workers can be reached in a variety of
ways including continuing legal education programs. Other decision
makers that cannot be overlooked are those who pay the hotel and
travel bills for lawyers to attend depositions: insurance companies,
clients, corporations. Numerous forums for addressing lawyers are
available such as local, state, national and special interest bar
associations, litigation sections, legal tech programs for lawyers
and for courts, continuing education seminars, in-house
presentations, court reporters, law librarians, legal publication,
etc.
INDUSTRY
EFFORT
The legal market is vast but untapped. Isolated company efforts are unlikely to penetrate the market or assist the legal community in understanding and using the products and services available. Although technology advisors and company efforts are valuable, their scope and impact are limited. Competitors within the industry can benefit from a growth of the market. A joint effort may be more beneficial to each participant than a go-it-alone policy. By sharing statistical information and coordinating efforts, the industry can benefit from cross fertilization of use as the administrators, continuing education gurus, and transactional lawyers share their experience and expertise with the litigators.
ANTICIPATE
AND COUNTER OBSTACLES TO USE
WITH POSITIVE PROMOTIONS
Practicing law is more than a full time job and most lawyers lack the time or interest to actively seek ways to change proven and established practices. Any attitudes or misconceptions by lawyers that inhibit use of video must be collected, analyzed and remedied as part of an ongoing process. The industry must clearly demonstrate in a short presentation that the technology promoted is easy to use and reliable, that it will simulate or surpass the benefits of personal appearances at a deposition, that it is cost effective and that costs can be spread among alternative uses in the law firm or that other costs such as video recording can be reduced. The expressed desire to be present at the deposition may have or include unarticulated reasons such as a desire to maintain social or personal contacts with opposing counsel; such contacts may be fully justified but not relate directly to the deposition process itself e.g. a desire to bring up settlement or other litigation issues in an informal setting. It may be necessary to probe to enable the lawyer to determine the real reasons why the lawyer perceives a need to be physically present or determine there is no valid reason. The industry must be aware of and be prepared to address the different types of witnesses and recognize different needs of lawyers as well as needs and resources that may vary depending on law firm size, type of practice and technological sophistication.