david feldman WORLDWIDE On time reporters. On time transcripts

In the context of legal testimony, realtime is the ability to view testimony in real time on a computer screen as it is being written by the court reporter.  Click here to see a quick demo of the technology in action.

The term “realtime” first appeared in print around 1940, and has been on an upward march in popularity ever since.  How do I know this?  Actually, finding information like this just became really easy thanks to Google Labs, which launched a super cool FREE new tool on December 16, 2010 called the “Google Books Ngram Viewer,” which allows anyone to plot the frequency of usage of any word over extended periods of time.  The tool queries Google’s vast database of over 5.2 million books, ranging from 1500 to 2008, and includes over 500 billion or so unique words that are included in the collection.  This tool provides for a wealth of trends by tracking the popularity of words spanning decades or even centuries.  Wow!

So I plotted “realtime,” and found the term was first used around 1940 and has been on the rise ever since.  Yet, here we are 70 years later and the application of realtime technology as a tool to empower litigators during depositions, arbitrations, hearings and trials is still unknown or highly underutilized by so many attorneys.  This is despite the fact that realtime technology in the legal space has been around for over two decades.  Isn’t that unbelievable?  So I’ve dedicated this blog post, my first ever (preview future blog topics) to the pros and cons of realtime for attorneys during depositions.

I am a certified LiveNote trainer (West LiveNote is currently the dominant player in realtime viewing software for the legal industry, although it is worth noting that Lexis Nexis in partnership with Stenograph offers a competing realtime viewer called CaseViewNet that seamlessly integrates with TextMap which is gaining in popularity) and over the years I have given dozens of LiveNote CLE training courses to thousands of attorneys.  I always start my CLE by asking the attendees by a show of hands how many have used realtime.  Even though I know what is coming, the answers still amaze me.  Usually less than half of the attendees raise their hands.  The funny thing is that the company LiveNote has for years been promoting how widely used their software is: “81% of AmLaw 200 firms use LiveNote.”  Also,  the law firms that I present to have almost always spent considerable amounts of money on the software, so what gives?  It is worth noting that in addition to realtime capability, both LiveNote and CaseViewNet/TextMap also provide an extremely powerful transcript, exhibit, and video management tool used to manage this information post-deposition, which is also highly underutilized by most, but more about that in a future blog.

The Cons – let’s start with why realtime is underutilized or not at all:

• “I didn’t know about it” or “why fix what isn’t broke” or the proverbial “can’t teach an old dog new tricks” – you get the idea, enough said.

• It’s too expensive and my client won’t pay for it – court reporting agencies around the country typically charge anywhere from $1.50 – $2.00/page per connection so depending on your budget, using realtime can be cost prohibitive.  But keep reading and perhaps you can forward this blog to your client to justify the expenditure.

• Realtime is distracting – I sometimes hear this one, but from my experience, many of the people in this camp have not been properly trained on how to use the technology and/or informed as to all of the benefits.

• It’s too frustrating because my court reporter can’t get my laptop to connect – Unfortunately, this one is somewhat common and stems from poorly trained court reporters AND poorly prepared attorneys.  As for the court reporters, not all court reporting agencies are created equally, so choose wisely.  But even if your court reporting company provides competent realtime reporters, you don’t always get to choose the court reporting company and your adversary may provide inferior court reporters.  But wait, there is still hope.  There is plenty you can do to improve your chances of a successful connection.  Click here to learn how.

The Pros – what those in the know…know.  There are countless attorneys who swear by realtime; here’s why:

• Instant access to the testimony, verbatim – simply following/reading the testimony in realtime misses the point.  It’s nice, sure, but by using realtime, now you can have the testimony quickly accessible at your fingertips any time during the day – not just as it is occurring.  So when you want to refer to testimony from earlier in the day for follow-up questions, you can immediately review what has been said rather than relying on the court reporter for a readback.  Or if you want to review at break or at lunch with your colleagues, experts…etc…you can review the exact testimony with ease rather than relying on your recollection of the testimony or the all-too-common yellow pad.

• Commanding the room – who’s in charge, you are, right? Let’s certainly hope so, and it can be intimidating to a witness knowing that everything being said is right in front of you and easily retrieved at any point throughout the day.  Strategically this can put the witness on the defensive and let them know that you’re in charge of the room.  Wouldn’t this technology come in handy with your spouse!

• Did you get what you thought you got? In many instances, attorneys may think a deponent has answered a particular question to their satisfaction or that they’ve phrased their question in a certain way only to read the final transcript weeks later and see that the answer or the question wasn’t as thorough as needed, oops, too late…ugh!  Having access to the testimony as it is occurring (or during a break) will help you confirm that you’re getting what you think you’re getting and got what you thought you got, before it’s too late.

• Errata issues - let’s face it, even the best court reporters aren’t perfect.  With realtime, you can instantly see whether or not the court reporter is “getting it” and address any mistakes by the court reporter while they are happening, not weeks later on an errata sheet.  This can significantly improve the quality of the final transcript.

• Objections – should counsel object to form, realtime allows you to calmly review exactly what you just said, reframe your question and get right back on track.

• Counter distractions - when you’re in a rhythm at a deposition, do distractions by the witness, opposing counsel or even the court reporter get you off track?  Or worse yet, you lose focus, perhaps worrying about something on the home front?  Never, yeah right!  With realtime, you can calmly pick up where you lost track and no one will ever know you had lost track.

• Flag key testimony – sticking with my 1940 theme, the yellow pad is over-utilized and inefficient.  With realtime, by a simple tap of the space bar, you can flag/highlight testimony when something important comes up.  You can then instantly navigate to any of these flags within seconds at breaks or bring the entire realtime transcript, including your flags, back to your office for review later that evening or days later.  If you want to get fancy, you can also assign issues in realtime and flag by issue rather than with a simple highlight.  You can also add notes to your issues.  Additionally, you can preset auto tags and the software will automatically flag and catalog predefined terms for you.  How efficient is that?

• View realtime testimony and/or video from anywhere in the world – did you know that you don’t even have to be at the deposition to view the realtime feed?  Known in the industry as LiveNote Stream, realtime can be streamed anywhere in the world with password protected access to view the transcript and/or video in realtime simply with an Internet connection and Internet Explorer (IE).  Most often this would be a colleague, your client, co-counsel, paralegals and/or experts.  In fact, remote attendees can even send secure instant messages to other remote attendees and/or counsel attending the deposition.  Don’t worry, opposing counsel can’t see these IM’s, even if they are attending remotely themselves.  This technology can save considerable time and money by reducing the need for everyone involved to attend the deposition in person.  This allows for improved collaboration among members of a team handling a litigation.

So while there are plenty of attorneys who don’t use realtime because they don’t understand the technology, there are cost considerations, or they find it to be distracting, in this day and age, many wouldn’t dare take a deposition, arbitration, hearing, or trial without it due to the many advantages offered.  Give it a try!