By Ralph B. Wegis
Special to Lawyers Weekly
There are times in a trial lawyer's life when, after a day in court, you wish you could review everything that happened in the day's proceedings, and then get to repeat the same day in court and do things a little bit differently.
Of course, this isn't quite possible. But the use of an interactive realtime transcript manager (a component of my lit support program, Summation iBlaze, which includes a fielded database, transcript manager and organizing tool) allows me to come pretty close.
Throughout the day, I can review the testimony on my notebook computer, with the notes I made, and even cross-reference given testimony segments with deposition transcripts and documents associated with the case. While realtime can't change what's happened in the courtroom, it certainly puts me in a position to use the testimony given that day effectively and accurately.
Interactive Realtime Defined
Interactive realtime is a technology that allows lawyers to view the text of a deposition on their laptop computers seconds after a court reporter has keyed it in, and electronically mark and annotate that testimony without losing focus on the proceedings. (Your notebook is connected to the court reporter's machine through a series of cables.)
In addition, lawyers can take away a draft of the transcript at the conclusion of the proceedings. If the courtroom is properly equipped, you can likewise use realtime technology to follow the proceedings, and make notes as needed.
The technology is not new. Various realtime programs (with differing levels of sophistication) have been available to litigators for nearly 10 years.
I have been a great believer in realtime since its inception, and have used it extensively in my civil litigation practice. I don't think I've ever encountered an opponent who uses it as much as I do. This is surprising, as the software is inexpensive (it's bundled with my lit support software) and, at least in its core application, extremely easy to use.
In Depositions
For most practitioners, the primary application of interactive realtime resides in the deposition process - whether you're taking the deposition or monitoring its being taken by another attorney.
When you're taking a deposition, your attention is naturally divided. Very few people can do two things that demand your attention well at the same time. You've got to keep your mind on the interrogation process, and not become distracted by trying to run a software program. Still, it's fairly easy to use some aspects of the program while maintaining a good focus on your witness.
The realtime program's quick marking capability lets you designate areas of inquiry to follow up on by simply hitting the space bar. You needn't look at the screen, take your eye off the witness, or otherwise disrupt the rhythm of your examination. You can isolate and revisit sections of testimony that you've marked any time in the proceedings, whether to refresh your memory on the deponent's responses, or to better phrase follow-up questions; using a deponent's exact words to refute later statements can be an especially withering tactic!
As you become more comfortable with the use of realtime, you can not only mark passages, but mark them with issue codes pertaining to key issues in the case.
For example, in a wrongful termination case, you could mark testimony relating to a supervisor's alleged sexual harassment with the harassment code, and at any point in the proceedings, view all testimony marked with that code. In addition to marking key passages of testimony on the fly for later review, you can conduct key word searches to revisit prior testimony without tipping off the witness (or witness' attorney) by asking the court reporter to read back the testimony.
The most obvious, and perhaps most powerful benefit of realtime when you're taking a deposition, is that it allows you ease up on your note taking, as you no longer need to depend on your notes to capture what was said. Once you let up on note taking, you will find that you pick up the pace of your questioning, giving the witness less opportunity to hedge, reflect, rethink, etc. You simply can't duplicate having the exact verbiage in front of you to key questions off of.
If I'm monitoring a deposition, there's bound to be a certain amount of dead time that can be turned into productive time. With realtime, there's no reason not to use that time to issue code the deposition.
In addition to case specific issues I also use codes for discovery ideas, and questions I want to follow up on. A report can then be sorted on the question and answer pairs with to notes about the follow-up question that came to mind when the answer was given. I'll do the same with the discovery notes that came up during questioning at the conclusion of the deposition. This way, I leave the deposition not only with a record of the proceedings on my notebook (called a rough draft of the transcript), but a fully coded transcript that I can review vis-a-vis other case material, or even email to expert witnesses, my client and any other participants with a "need to know."
When I receive the final draft of the transcript from the court reporter, all my notes from the rough draft are automatically transferred and synced up to the final. (Keep in mind page and line numbers in the certified final draft will be different from that in the interim transcript received in the realtime deposition or at the end of the deposition).
With the latest release of Summation, any files associated with the deposition - the draft of the transcript, image files (.tifs, .jpgs etc.) of any exhibits used, even synchronized digital video files of the proceedings - can be dragged and dropped from e-mail into the program, with all exhibits hyperlinked to the exhibit reference within the transcript. The transcript exhibits are also loaded into Summation's database, so they can be searched and further annotated.
In Trial
My use of realtime in trial largely mirrors how I use it in the discovery phase.
When someone else is examining a witness, I have plenty of time to code testimony and note follow-up questions, without losing focus on the larger proceedings. My primary job is to watch the witness, while peripherally noting the reactions of the jury.
Thanks to realtime, I'm not pounding away at the computer or taking furious notes to track key exchanges. I can nail testimony with a keystroke, and bring that testimony up on screen any time I wish - even while I'm following the realtime feed (marked testimony appears in a separate window).
One of my favorite realtime tricks in the courtroom involves incorporating new testimony into my trial presentation - sometimes just minutes after it's gone on the record. I'll simply copy actual testimony from the realtime feed and paste it into a PowerPoint slide. By highlighting testimony that the jury has just heard in a slide, you can really drive a point home; the jury will certainly pick up on it. I will likewise monitor testimony during the opposing side's closing argument, tracking their statements against my rebuttal and closing argument, which I have already prepared. This way, I'm able to check off points that I anticipated, and, if necessary, build new slides for arguments that I didn't anticipate.
I should mention that managing testimony and incorporating it into larger case themes is greatly facilitated by an organizing tool in Summation.
Say, for example, you mark several depositions with a code for the issue "defective part." You can search for all testimony with this code, and you instantly get a report, with a series of Q&A excerpts, all separated by deposition. You can place this report into the Case Organizer, add your notes, and link testimony excerpts to pertinent exhibits. Testimony excerpts are linked to testimony in the actual electronic transcript, which you can bring up with a mouse click. With the organizing tool, I can generate a precision examination outline that also serves as "command center" for other relevant case information.
Making Arrangements For A Realtime Deposition
Interactive realtime is becoming more and more accepted in the deposition room and the courtroom. Major court reporting firms have a battery of realtime certified reporters available to accommodate the special needs of realtime reporting.
If a case is taking you to a more rural region, it may take a bit of sleuthing to find a realtime reporter; the National Court Reporter Association's website (www.ncraonline.org/applications/psl/) provides a comprehensive list of court reporters and their levels of certification. A list of reporters experienced with Summation is listed at www.summation.com/courtreps/listing/results.htm.
Below I've listed a few tips for setting up an interactive realtime deposition:
If you are taking the deposition, notify your court reporter that you wish to take an interactive realtime deposition and what software you are using to receive the feed. Also, make sure they bring enough cables for you and any other attendee who may want access to a realtime feed.
To eliminate any objections from your opposition, it's wise to indicate in your Notice of Deposition that you are going to use interactive realtime transcription. (Some states' rules of civil procedure, as in California, require a statement in the Notice of Deposition that realtime transcription is being used.) If your opponent has noticed a deposition and you wish to use realtime (e.g. in your role of defending the deposition) contact the noticing party's court reporter and indicate that you wish to use realtime at the deposition.
Check that the computer you intend to take with you to the deposition has a serial port available for the realtime feed. Also, find out from the reporter if the realtime software you're using could be impacted by any peripheral devices connected to your computer. (For example, when your computer is set up to be connected to a Palm Pilot, the infra-red monitor or Hot Sync program may need to be disabled.) If you don't have an available serial port, you can obtain UBS-serial port converter for approximately $30.
Most realtime software has a simulation feature, so that you can receive streamed text without actually being connected to a court reporter. A 15-minute time investment to practice operations such as quick marking testimony, or navigating in the streaming testimony can greatly enhance your use of realtime as the deposition ensues.
It's wise to arrive at your deposition at least 30 minutes earlier than you normally would to give your court reporter a chance to connect to your computer with a serial cable. Then have the court reporter send you a test feed. If you are having problems connecting, it's most likely because your realtime software and the court reporter's CAT machine are not set to the same baud rate. The baud rate setting can be easily reconfigured.
My use of interactive realtime has not yielded gasp-inducing "gotchas" in the courtroom, nor can I say that it has been the single difference between winning or losing a case. However, I do believe that realtime has given me a thousand tiny wins that otherwise would have been missed. There's no question that these wins add up. Being able to retrieve noteworthy testimony with a few keystrokes, be it in the heat of the action or during lunch break, is a great benefit. The same goes for being able to take an electronic copy of the deposition home at the end of the day. If I haven't coded it in the course of the deposition itself, I can do so while it's still fresh in my mind, and in the context of the larger body of case information.
May 24, 2004
