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  • InsideTrack
  • November 17, 2021

    WAJ Petitions Supreme Court to Make Remote Deposition Rule Permanent

    A petition filed with the Wisconsin Supreme Court would create a permanent rule for remote depositions.

    Jeff M. Brown


    Nov. 17, 2021 – When the coronavirus lockdown went into effect in March 2020, the machinery of justice in Wisconsin ground to a halt.

    The Wisconsin Supreme Court ordered a halt to in-person court proceedings across the state. Depositions, which take place out-of-court, weren’t included in the order but were subject to county and state stay-at-home orders. Overnight, the pandemic had taken an important tool in the civil discovery process off the table.

    “Lawyers faced a real crisis when the pandemic hit, especially those whose business is dependent upon either billing hours to do depositions or having a deposition to facilitate the resolution of their cases,” said Jim Rogers, government affairs director for Wisconsin Association for Justice.

    The Wisconsin Supreme Court eased that burden by issuing a temporary rule that allows court reporters to take depositions remotely. The court has subsequently extended the temporary rule until July 1, 2022.

    To ensure more flexibility moving forward, WAJ has filed a petition with the Wisconsin Supreme Court – which the State Bar of Wisconsin supports – requesting a permanent rule to allow court reporters to take depositions remotely.

    Current Law Includes Restrictions

    A state statute enacted in 2019 allows public notaries – a group that includes court reporters – to use communications technology to remotely perform some notarial acts. But a subsection of the statute excepts administering an oath for a deposition from the list of notarial acts that may be performed remotely.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Court reporters hoping to perform depositions thus remained subject to another subsection that requires them to verify the identity of witnesses appearing before them.

    Because “before” had historically been interpreted to mean “in the physical presence of,” remote depositions were deemed a no-go.

    “Freelance court reporters were dead in the water,” said Chris Willette, a court reporter and past president of the Wisconsin Court Reporters Association and the National Court Reporters Association. “Wisconsin does not have licensure or certification for court reporters. The only thing that allows us to work as court reporters is the notary public law.”

    According to Willette, some lawyers concluded that the law’s stricture could be avoided by stipulating to a remote deposition and remote administration of the oath. But Willette said the risk that that conclusion was wrong was too great for court reporters to bear.

    “Unless I’m willing to lose my notary rights and therefore lose my profession, I’m not going to do it. So we couldn’t work because we couldn’t be in the presence of the deponent.”

    The court reporters voiced their concerns to the WAJ. Rogers said the group took those concerns seriously.

    “We’re grateful to the court reporter community for raising the issue, because attorneys would never want to put them in a jam,” Rogers said.

    “Attorneys need them to do good and accurate work and we don’t want them to be in a situation where they feel they could be subject to discipline by the court or the people who license notaries. They felt like they were potentially operating without a net, and that’s not a position anybody should be in.”

    WAJ Files Petition

    The WAJ responded by asking the supreme court to issue an emergency order allowing depositions to be performed remotely. The court issued a temporary rule on March 24, 2020. The rule was extended in June 2021 and again in October 2021.

    As noted, the rule is set to expire on July 1, 2022. On October 8, the WAJ petitioned the supreme court to make the rule permanent.

    “The remote deposition became very, very important on a crash basis, and we thought the court did a good job of opening up that practice in their emergency orders and the end result was our decision to adopt their language into a permanent request, which we think strikes the right balance,” Rogers said.

    Rogers said he hopes the benefits that have flowed from the court’s temporary rule allowing remote depositions convince the court to make the rule permanent.

    “It was absolutely vital in allowing people to maintain their deposition practice and it continues today, because many people have now found that there’s not a lot of downsides to conducting a deposition over Zoom.”

    'I Can Get so Much More Done in a Day'

    Kristen Scheuerman, a litigator at Herrling Clark Law Firm Ltd., in Appleton, said the benefits of conducting remote depositions are manifest.

    “I think that when we realized we could do a lot of this work virtually, for me it not only revolutionized the practice – it had an incredibly positive impact on my work-life balance and, frankly, my clients. I can get so much more done in a day if I don’t have to leave my home office to take a deposition.”

    Conducting depositions remotely makes it easier for clients to attend them, Scheuerman said.

    “If they have to be deposed, they don’t have to take an unpaid day or use sick time or vacation time as much because they can schedule it over the lunch hour.”

    What about losing the ability to perceive body language by conducting virtual depositions? Just move the camera back, said Scheuerman.

    “To me, there isn’t a difference in seeing that in the same room or seeing that on a screen.”

    Scheuerman said that remote depositions actually offer a benefit to lawyers conducting depositions during the pandemic – the ability to perceive the sometimes telling facial expression of unmasked witnesses.

    “When I took a deposition on Zoom and everybody was on their screen, I didn’t have to look at a masked witness, which was a benefit to me because I could see their face,” she said.

    There are some cases where remote depositions aren’t the answer. Cases that involve large models as exhibits – for instance, a table-top map that reconstructs an accident scene. But they’re the exception rather than the rule, Scheuerman said.

    “For me, those must-be-in-person cases are very, very minimal.”

    With the right amount of planning, even depositions with larger and more complex exhibits can be handled remotely.

    Scheuerman said she’s taken depositions in complex product liability cases with expert witnesses and exhibits that number 40 or more. She and opposing counsel numbered and shared exhibits ahead of time and made heavy use of the chat and screen-sharing functions during the depositions.

    “It’s just planning and organization, which I think is maybe a deterrent to some people,” Scheuerman said. “It forces you to be that much more in tune with the witness and the direction you want the deposition to go. And then you just have to be able to work on the fly.”

    Scheuerman cited a products liability case she’s currently handling. Before she deposed a defense witness, she overnighted a large machine part to the site where the defense witness would be conducting the deposition.

    Scheuerman said the attitude of the people using the technology is as important as the technology itself.

    “Of course, the caveat to it all is how courteous can the attorneys be? Almost all things can be addressed if the attorneys and the parties are really committed to making it work.”

    Remote Depositions Require New Methods

    Jared Potter, who practices family law at Stafford Rosenbaum LLP in Milwaukee, said he still prefers to conduct depositions in-person if cost is no object to a client, or if a deposition can be done in-person without incurring substantial travel costs.

    It can be difficult to determine whether a remote deponent is alone in the room where they’re appearing from, or whether they’re relying on notes.

    “You can’t control what’s in their computer screen,” Potter said. ”You have to do your best to see what the person’s cues are… But the truth is, money is an issue, so you’ve got to balance what’s absolutely necessary to be in-person and what you can do by video.”

    Part of that balancing act involves weighing tactical considerations, Potter said.

    “You do lose a little bit of the element of surprise, because in some instances you’re going to send the documents that you want the person to testify about – you’re giving them some opportunity to be ready.”

    Potter said that conducting depositions over Zoom has forced lawyers to learn new methods for introducing rebuttal evidence, which is often not filed before a deposition.

    “It does cause a break in the deposition,” he said. “It’s not that you can’t do it. You just need to know the new methods and tools on how to do it.”

    But the benefits of conducing remote depositions outweigh the detriments, Potter said. For instance, conducting online depositions allow lawyers to more easily serve clients who live in “legal deserts” – rural areas of the state struggling with a dearth of lawyers.

    “It’s not like those people don’t have issues or cases, or aren’t witnesses. I think remote depositions could really help people in those areas better litigate their cases.”

    According to Potter, the cost of paying a lawyer to drive several hours to attend a deposition and then back again has the potential to discourage people from seeking legal help or engaging in alternative dispute resolution, which also often relies on depositions.

    “Now you’ve got an opportunity through deposition and discovery to work up cases for people,” Potter noted.

    Potter said conducting depositions remotely has had a profound effect on his practice. Because it’s cheaper to attend remote depositions, he can attend more of them if the case calls for it.

    “So, clients will be more willing to do a deposition or have you attend a different party’s deposition that you may not have otherwise gone to, depending on what your client’s position in the case is,” Potter said.

    “If I can hop on a Zoom for an hour and witness this and then hop off and not have to travel for a day… that makes a huge difference for a lot of clients. I think that really changes how you can conduct this kind of discovery, and it opens up the ability to reach out to more people to depose them.”

    Court Reporter Shortage

    Willette said making the remote deposition permanent would also help solve another problem facing litigants across the state: a shortage of court reporters.

    “There’s a huge shortage of stenographic court reporters,” she said. “It’s very difficult to get through school. The dropout rate for court reporter school is about 90 percent.”

    Willette, who lives in Wausau, used to own a court reporter agency. The agency had six freelance reporters who served clients in an area bounded by the Upper Peninsula to the north, Eau Claire to the west, and Green Bay to the east.

    “It was becoming more and more difficult,” Willette said. “If you had a deposition in Eagle River, that’s four hours for one deposition of maybe 50 pages. Your day is shot.”

    The switch to remote depositions, Willette said, means that court reporters can be more productive and more readily supply the coverage that lawyers need.

    “This has greatly alleviated the court reporter shortage all across the U.S.”

    It also means that freelance court reporters, who are paid by the page, are able to work more depositions in a day.

    “We’re now having trouble getting court reporters to go back to in-person because they’re making more money remotely,” said Willette, who now works for Esquire Depositions Solutions, a national court reporter agency.

    'Overwhelmingly Positive'​

    Scheuerman said there’s little downside to making the remote deposition rule permanent, given that the rule would allow but not require remote depositions. Parties can still hold depositions in person, she pointed out.

    “What harm is there giving people the option to practice law in a way that might be incredibly beneficial to all involved?”

    In addition to helping with the court reporter shortage, Willette said, making the rule permanent would be an acknowledgment of where the practice of law is headed.

    “I think the future of technology is going to be virtual,” Willette said.

    Rogers is optimistic about the petition. He said the experience of lawyers conducting remote depositions over the past year-and-a-half speaks for itself.

    “We’re grateful that the court extended the rule to allow it to continue. We think we have a strong case, the way we petitioned it using their language with small changes.

    “The emergency rule works very, very well. We have reached out to a broad array of stakeholders in the bar and found few to no people who disagreed with continuing this approach on a permanent basis. If people are interested enough to testify when there is a public hearing on this, the testimony is likely to be overwhelmingly positive.”

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