Litigation Showcase

Instant Gratification in Courtrooms

Real-time transcripts allows lawyers to focus on testimony, not notetaking.

By Chris Santella

AMERICANS want things now, be it their fast food, mail order merchandise or deposition transcripts. The desire for immediate gratification has given momentum to "interactive realtime," a technology that permits attorneys to view the text of a deposition on their notebook PCs seconds after the court reporter has keyed it in, and to mark and annotate that testimony electronically, without losing focus on the proceedings.

About 30 percent of court reporters now offer interactive realtime services, according to industry officials. The acceptance of realtime has influenced the California state Legislature to include a 1999 revision of the Rules of Civil Procedure requiring deposition notices to reflect any intention of the noticing party to record a deposition through instant visual display.

Using realtime, attorneys can take an electronic draft of the transcript away with them at the conclusion of proceedings. When the court reporter provides a final transcript of the deposition, the interactive realtime draft can be easily updated; all marks/annotations that were made in the draft version are automatically updated to the appropriate page/line in the final transcript.

Immediate access to the day's deposition testimony (for review that night and comparison with earlier depositions and other evidence in the case) is one motivation for increasing demand for Interactive Realtime capabilities. Other advantages to interactive realtime include:

• The attorney can let up on notetaking because it's no longer necessary to rely on notes to capture what was said. Many attorneys find that not needing to take notes helps them pick up the pace of questioning, giving the witness less opportunity to hedge, reflect, rethink, etc.

• "Quick Mark" and other annotation features enable lawyers to better "lock in" the witness. Revisiting marked testimony reduces reliance on memory or incomplete notes to help the attorney analyze whether to stand pat, or risk asking that one question too many allowing the witness an escape.

• Report/digesting features let attorneys instantly review and annotate testimony in context. (Some programs allow reports to be sorted according to salient issues assigned to each testimony excerpt.)

• Scrollbar, PageUp, UpArrow keys, and word searches features enable attorneys to revisit earlier testimony without tipping off the witness (or witness' attorney) by asking the court reporter to read back the testimony. Backing up to a previous question and answer allows attorneys to read the exact wording previously used as they are framing a follow-up question that references prior testimony.

• During breaks, attorneys can check to make sure that they have not misspoken (e.g., used the wrong date); that the court reporter has not misheard a crucial question or answer; or, in general, that the record of important testimony indeed appears as intended. Review may also help deposing attorney articulate post-break questions.

• If earlier depositions (or evidentiary documents) have been loaded into the attorney's litigation support software package, they can be referenced in the course of the proceedings to see how evidence corroborates with the testimony of the realtime deponent.

"In a recent case, we had an accelerated two-week discovery schedule, and then a trial brief due just days before the full hearing," said John W. Allen, a litigator with Varnum Riddering Schmidt & Howlett, LLP of Grand Rapids, Michigan. "Using interactive realtime software, we were able to leave each of the 17 pre-trial depositions with a 'rough' transcript on disk. We drafted the brief as we went along, and were ready for a timely filing the day after the last deposition finished."

"If I want to refer to something (e.g., a list of things or events)," adds Allen, "I just electronically mark it, and go back to it later. That leaves me free to focus on the witness's eyes. The eyes are the best human polygraph, and I learn a lot by watching them during the witness' answers."

Litigator William J. Kayatta, Jr. of Pierce Atwood in Portland, Maine, used interactive realtime to take depositions in the successful defense of a high profile suit earlier this year. "Interactive realtime was invaluable in framing consistent follow-up questions using the witnesses' own terms, and in replacing less accurate notes for mid-day decision making," Kayatta said. "It also helped facilitate end of the day sharing of highlights with others working on parallel depositions," he said.

Most litigation support software packages include an interactive realtime deposition manager. Using them is as easy as connecting a few cables and tapping the space bar on a notebook computer. (The most sophisticated applications on the market permit expanded functionality, such as the ability to automatically mark transcript lines containing key words the user has previously designated as significant.)

There are, however, a few checklist items to keep in mind when preparing for an interactive realtime deposition:

1. If you are taking the deposition, notify your court reporter that you wish to take an interactive realtime deposition, and make sure they bring enough cables for you and any other attendee who may want access to a realtime feed. To eliminate any objections from your opposition, indicate in your Notice of Deposition that you are going to use interactive realtime transcription.

2. Check that the computer you intend to take with you to the deposition has a serial port available for the realtime feed.

3. Arrive at least 15 minutes early in order to give the court reporter a chance to connect to your computer with a serial cable. Then have the court reporter send you a test feed while your realtime transcript manager walks you through set up (some programs have a wizard for getting set up, which greatly facilitates the process).

As more and more litigators use interactive realtime deposition managers to increase return on deposition investment, the Internet is likely to play a heightened role. Realtime transcript feeds, and video feeds via the Internet are also available from some vendors.

Chris Santella is communications manager of Summation Legal Technologies Inc. and is based in Portland, Ore.