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Originally Published on MyLegal.com and Reprinted with Permission
It's a familiar story: Junior attorney gets partner's attention. Junior attorney gets litigation assignment. Junior attorney gets overwhelmed and does not know where to start, or worse, gets in trouble for making a seemingly operational mistake which ultimately has legal or financial consequences to the client.
Instead of getting in the bad habit of relying entirely on your law firm's staff (and later floundering without their support over a holiday weekend), invest in your own professional long-term working relationship with the litigation support professionals who can help the process flow smoothly.
Now, it should go without saying, but the worst part of the job for litigation support professionals - court reporters, videographers, interpreters, etc. - can be the lawyers. Many lawyers can be non-communicative, rude, condescending, deadbeat know-it-alls. Don't be that lawyer. Be the one they are eager to work with, and you will reap the benefits of their expertise and service.
Let's consider a deposition process. Where do you start? And what proactive steps can you take to minimize common problems?
As Soon as Possible
First, know your law firm's internal support staff. Know what they can do for you and what they can't. Avoid the temptation to fully delegate. Instead, go personally to their offices and spend maybe a half-hour learning exactly what they do and how they do it. Learn which vendors the firm retains and why, any budgeting constraints, and client sensitivity about cost, quality, and scheduling. Take detailed notes as if you were training for their jobs. Repeat back what they've said to confirm you have it right. (Remember, this is all you have to fall back on. Some staff may think their job security is rooted in exclusive job knowledge, but ultimately the attorney is responsible; this is not a mistake you want to explain to a partner, client, or judge.) Once you know what your firm's support staff does, you will be able to cover yourself when a key person is out, or something comes up after hours.
As soon as you learn of the litigation and get a rough estimate of the docket and budget, coordinate with your first choice of vendors you would hire for depositions. A heads-up call or email to pencil in your first choices is particularly helpful during holidays or times your specific practice area is most busy. While neither side will be formally scheduled, this increases the chance vendors will make themselves available when you call to finalize the booking. As always, be careful not to reveal anything that could compromise a client confidence.
Of course, coordinate all scheduling with opposing counsel, not their clients. Put everything in writing, probably email, to date-stamp communications and minimize miscommunication. Once dates are finalized, call back the litigation support professionals you had given a heads-up to, and formally schedule everything (including pricing and delivery deadlines), in writing. Off-site meeting space instructions should be very clear, and, no matter how much hand-holding you do for your own client, the vendor is a professional who will need enough information to plan her own logistics, such as calling in advance about parking, security, or public transportation.
The Day Before
"Help me to help you." Detailed communication is key, and the more you can provide in advance, the better. It should be clear to every vendor which client you represent. Court reporters can pre-learn the correct names and spellings of the parties' names to minimize errata sheet corrections later. Fax or email a copy of the case caption, Certificate of Service or Answer to the Complaint to the vendor, and provide the court reporter with his own clean copy of any exhibits that will be referenced in the interview and final transcript.
Make sure the vendor has a way to contact you directly in case of emergency, with an option to reach you silently. The interpreter arriving to translate for the day's third deposition may be arriving mid-deposition. Meeting space does not always have a receptionist to answer the phone, and unless you are a very familiar face, your presence in Conference Room C may not be obvious to the security desk.
The Day Of
Obviously, arrive early, preferably when the vendor arrives. Typically, court reporters should arrive 30 minutes early, and videographers 60 minutes early. You can spend the time not only preparing yourself and your client for the deposition, but managing any logistics such as switching to a larger conference room, and guiding the set-up and seating arrangements. This is particularly important if you intend to receive realtime for your deposition, because the court reporter will need time to test your laptop to ensure the realtime feed is working; if there are technical problems, she will configure realtime through her spare laptop. Last-minute changes will delay the start time.
Imagine a deposition from the vendor's position. A videographer will need lighting, space, a power source, and will know best how and where to assemble equipment. A videographer will not know, unless you tell her, that it is very important that the deponent's physical injury appear on camera, that the deponent won't be able to hear out of his left ear, or that you want a profile angle. A court reporter needs to see and hear the deponent, and can take down only one person at a time, so it is very important that only one person speak at a time. If you need to interrupt a deponent, try to do so with a hand gesture or facial expression before you speak. When quoting material on the record, literally say "quote" and "unquote" to help the court reporter document the distinction.
Picture the final video and transcript. Clients and counsel should be prepared to work with the camera, by speaking slowly and clearly, not speaking over others, not letting their voices trail off at the end of statements, not fidgeting or jingling pocket change, and not wearing very fine striped or houndstooth patterns, which "swim" on video. You may need to ask a client to keep a blazer on, clean his glasses, or pull back her hair. Remove water bottles, paper, cell phones, and PDAs from the table so they do not clutter the shot, and before vendors tell you there is electronic interference between your gadgets and their equipment.
Once everyone has arrived - the deponent, opposing counsel, your client, other vendors - make sure all introductions have been made and exchange business cards. There should be no ambiguity regarding which attorney represents which side.
Before beginning the deposition, agree with opposing counsel, and secure everyone's agreement, about the timing and duration of breaks. The vendors will probably need a break about every 1.5 hours because their task is so physical, and they will need to change tapes or possibly make equipment adjustments, or check batteries and memory. If it's going to be a long day, share any refreshments and snacks with the vendors, too. Caffeine, chocolate, and granola bars generate goodwill.
Mute your Blackberry, mute your PDA, mute your mobile phone... enough said.
During the deposition, things may go wrong with logistics. Do not panic. Do not hesitate to stop and correct things to ensure the end result will be the best possible quality. Glance over at the videographer and court reporter from time to time to see if they are struggling with anything and might need people to speak up or make other changes. It is a bonus if opposing counsel is also satisfied, but at the end of the day, you are the one who hired the vendor and are in charge of the room.
After the Deposition
Immediately after the deposition is a key moment. Before packing up and leaving, or dismissing the other side, take a moment to ensure all the exhibits are accounted for and all orders and delivery times are confirmed. If you are downloading content from each other, take a moment to ensure that the transmissions worked and you have everything.
If you had problems with a particular videographer or court reporter sent to your job, don't rush to write off the agency. Agencies employ many independent contractors, and someone else within the agency may be a better fit. Also, some litigation support professionals may switch agencies or work with multiple agencies, so if you like the individual more than the agency, you can hire a great match again. Feedback and appreciation will help ensure you get what you need next time.
Resist the temptation to provide the opposition with a copy of the final product in exchange for splitting the cost. The product is the vendor's to sell and is how the vendor earns his living, and besides, you may have precluded getting your opponent to pay the whole bill later if the judge so orders.
At the end of the day, your reputation is all you've got, and information travels fast in the tight-knit network of litigation support professionals in your region or practice area. This means you will get a lot more mileage when you treat the court reporter and videographer like a client - scheduling in advance, communicating details, respecting expertise - and you take advantage of the opportunity to learn from a seasoned professional.
About the Author
Erica Jacobson Mijares is an attorney and writer in the Baltimore/Washington, D.C. area.