Promotional material for a continuing legal education program on deposition practice that crossed our desk recently gave a “pros and cons” assessment of remote versus in-person depositions. And while the authors took care to mention the cost savings and efficiencies of remote depositions (not to mention their compelling digital search, sharing and summarization capabilities), they also asserted that in-person depositions are “free from technical glitches, which are sometimes a concern with virtual formats.”
Leaving aside the reality that technical glitches during remote deposition are rare and largely self-inflicted wounds, it occurred to us that in-person depositions have their glitches too. We tend to forget them. In fact, the risk of glitches might be greater in traditional in-person depositions.
Which got us thinking: Are there such things as non-technical deposition “glitches?” The sort that might afflict in-person depositions? And if so, what might they be? Leaving aside the reality that technical glitches during remote deposition are rare and largely self-inflicted wounds, it occurred to us that in-person depositions have their glitches too. We tend to forget them. In fact, the risk of glitches might be greater in traditional in-person depositions.
There’s no reason “glitches” must have their origins in technology. Glitches occur every day, entirely unrelated to computers and other digital devices. When you meet someone in a social setting but forget their name, that’s a glitch. Leaving home without your wallet or purse is a glitch. Taking the wrong file to court is a glitch.
Dictionary publishers share this view. Among the definitions for glitch found in the Oxford English Dictionary is “an unexpected setback in a plan.” The Merriam-Webster Dictionary defines glitch as “a usually minor malfunction.” A glitch, let’s say, is any minor problem or fault that prevents something from being successful or working as well as it should.
In-person depositions can have unexpected setbacks. Circumstances can arise that prevent them from being as successful as planned. With these thoughts in mind, we’ve come up with a number of in-person deposition “glitches” that careful counsel should consider when weighing one deposition format over another:
- Getting stuck in traffic on the way to the deposition, and having to make excuses with other parties who arrived on time, ready to begin on schedule.
- Noticing and re-noticing (and re-noticing again) deposition times and locations to accommodate busy schedules of multiple attorneys and parties.
- Coping with the possibility of interruptions, distractions, noise, and uncomfortable circumstances in some in-person deposition settings.
- Failing to secure expert testimony due to the expert’s busy schedule or refusal to travel for in-person deposition.
- Failing to obtain deposition testimony of witnesses who reside overseas.
- Needing to protect witnesses from in-person intimidation or overly aggressive questioning from opposing counsel that might occur in in-person settings.
- Needing to parry opposing counsel’s attempts to disrupt an in-person deposition.
- Preventing witness stress or anxiety from yielding damaging or unhelpful testimony during an in-person deposition.
- Experiencing difficulty using electronic evidence and demonstrative evidence as exhibits during in-person depositions.
- Justifying to clients the increased expense and time necessary to conduct depositions in-person.
- Compromising discovery and trial strategy due to the relatively higher cost of in-person depositions.
- Failing to capture and preserve critical information with ink-on-paper tools.
- Making errors – or wasting valuable time – annotating and sharing paper documents during in-person depositions.
- Missing opportunities to discover critical information during in-person deposition the absence of modern digital finding aids and AI-generated insights.
Glitch, glitch, glitch. All depositions formats hold the potential for glitches. It might be better to focus on the relative benefits of remote depositions over in-person depositions instead of urban legends about technical glitches. Viewed in terms of benefits, remote depositions really shine as a pretrial discovery tool.
Everyone naturally holds an instinctive nostalgia for the past. It’s human nature to forget bad experiences. And while some things were actually better in the past, the natural tendency of some people to cling to familiar, tried-and-true methods can prevent the adoption of technological innovations that promote better ways of practicing law and deliver better outcomes for clients. Remote depositions are almost certainly one such innovation, whatever your views on glitches might be.
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