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O’Brien & Levine Blog: On the Record

Restrictions Loosen. What’s Next?

With restrictions loosening, what will your depositions, arbitrations and trials look like?

That’s the question posed in a recent webinar presented in partnership with the Boston Bar Association, with moderator Kenny Zais, president and owner of O’Brien & Levine Court Reporting Solutions.

Knowledgeable panelists had answers:

  • Hon. Maynard M. Kirpalani, Associate Justice of the Massachusetts Superior Court
  • Payal Salsburg, Partner, Laredo & Smith, Boston
  • Deb Curran, Director, Business Development, O’Brien & Levine Court Reporting Solutions

Over the last 15 months, due to the pandemic, the litigation landscape changed completely. A familiar, traditional process is now quite different. Litigation teams have discovered—and adapted—remote technology solutions to keep cases on track, control costs and show value to their clients.

What will now stick as social distancing and mask requirements are relaxed? Here is a bit of what the panelists shared with attendees.  

Judge Kirpalani serves on a committee of Superior Court judges appointed by the Supreme Judicial Court to make recommendations on the future of virtual hearings. He noted that there is broad support for selective use of virtual hearings post-pandemic. While the SJC will ultimately determine the parameters, in instances where virtual proceedings have proven efficient, and have not been problematic, they ought to be considered even when no longer compelled by public safety concerns.

In short, what works and makes sense should probably continue.

The SCJ order in March 2020 permitting oaths at depositions to be administered over videoconference, waiving the requirement for a court reporter to swear-in and record testimony in the presence of the deponent, has been tremendously beneficial for all parties.

Since travel time is not a factor, said moderator Kenny Zais, court reporters have flexibility and the bandwidth to cover back-to-back depositions, accept last-minute assignments and cover proceedings in hard-to-reach locations.

What about exhibits?

Pre-pandemic, a hurdle for wide acceptance of remote depositions was how to handle exhibits, even though technology for digital exhibits has long been available.

In her commercial litigation practice at Laredo & Smith, Payal Salsburg shifted to exchanging and introducing exhibits electronically when deposing a witness remotely. When in-person proceedings resume, Attorney Salsburg does not intend to resume printing and distributing stacks of hard copies.

For example, a current case has 178 exhibits. She sees no reason for all that expensive paper to accumulate in various offices. As is now customary, the taking and defending attorney attend with a laptop or tablet, and can continue to share and present exhibits electronically.

O’Brien & Levine’s Deb Curran reinforced the efficiency and cost-savings of incorporating a digital workflow for exhibits. In a case about recovering damages, she recalled, there was a line item to reclaim $14,000 in costs for copying exhibits! Bottom line: Even as depositions once again take place in a conference room, electronic exhibits are likely to supersede the paper version.

Further, as technology upgrades are implemented across the Trial Court, Judge Kirpalani foresees a paperless future, from attorneys e-filing cases to touchscreens with exhibits for jurors, instead of a 10-pound trial notebook on their laps.

During a challenging time, the panelists agree, litigators, court reporters and videographers have been innovative and resourceful. Tune into the webinar for the full discussion and panelists insights.

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