The Myths and Realities of Deposition Services

Do you remember deposition summaries? It used to be common practice to have a paralegal or associate summarize every deposition taken. Ever-increasing bill rates and client scrutiny of trial preparation expenses led some firms to seek ways to avoid preparing deposition summaries, regardless of their utility. Indeed, new technologies for managing litigation have for many firms taken the place of the deposition summary and many corporate legal departments have welcomed the change as more cost effective. If you believe that your outside counsel's desire to have depositions summarized is a luxury that they can do without, you may want to rethink your philosophy.

Text searches do not provide the same content as deposition summaries prepared by trained professionals and cannot guarantee accuracy when searching deposition testimony. In addition, not having a summary and relying upon text searches can be far more costly in the long run. In this article, I will address some of the prevailing myths surrounding the use of automated search engines and point out where good, old-fashioned deposition summaries provide greater value for the attorney trying the case as well as the client paying the bill.

Myth #1. Searching depositions via text searches through case management software or through an on-line repository provides the same overview as a deposition summary.

Text searching is only as good as your query. If you know what you are looking for and how the witness testified, text searching is very effective. However, if you do not have time to read the full testimony, did not attend the deposition, and need to know what it says, a deposition summary provides greater content more quickly.

Skeptical? Imagine you are back in college. One of your assignments is to present a thesis and answer questions concerning Romeo and Juliet. To prepare, you are given the choice of either conducting text searches or reading the Cliff Notes version of the play. Which would make you feel more prepared? Now, imagine that your thesis covers the entire work of Shakespeare.

Welcome to today's litigation. Dozens of witnesses are called to testify. Thousands of pages of documents need to be reviewed. Hard drives need to be produced in electronic discovery. Pre-trial briefs need to be written. Your outside counsel has a team of two partners, five associates, and a case manager working at a fevered pace. Only one person on the trial team attended the deposition and that person is not available. To find out what happened without reading the entire testimony, often hundreds of pages for a single witness, point and click searches cannot replace the content of a deposition summary.

Myth #2. Case management software provides accurate feedback more quickly than a deposition summary.

In many cases this is true. Summation, Concordance, LiveNotes, and other products have revolutionized the way law firms handle large litigation. These systems can and do save you and your outside counsel time and can be an accurate tool for pinpointing testimony. One search can pull up testimony, exhibits, discovery and all the pleadings in a case, depending on the software your law firms use. This is invaluable and should not be eliminated in favor of deposition summaries.

But what about the times you just need to search a witness' testimony for a specific point? Can you trust the search to give you appropriate feedback?

Suppose your company is party to a toxic tort class action. You want counsel to write a motion to dismiss the medical monitoring claims. The attorneys writing the motion need to determine whether the class representative mentioned this claim in their first deposition and search the testimony for variations of "medical monitoring." Each search yields no results. Are the search results accurate? The witness may have testified about being nervous about future illness and someone else should pay for physicals, but how is your outside counsel going to locate the testimony the way the witness said it? How many searches do they have to do before they find the appropriate testimony? How much time was spent and how much did that time cost?

Deposition summaries provide topic headings. These headings can be scanned in seconds to determine if there was enough testimony concerning an issue to warrant a topical heading. In addition, since deposition summaries are usually only seven to ten percent of the length of the original transcript, the entire summary can be read and evaluated in the time it takes to conduct just a few searches.

Myth #3. Using technology instead of having deposition summaries prepared saves money.

The intangible costs for not having an associate, paralegal or service summarize testimony are enormous. On average, it takes someone about an hour to thoughtfully summarize 10-15 pages of testimony. Bill rates range can average about $100 per hour depending on the level of the person summarizing the text. For a 200-page deposition, it will cost corporate counsel about $1,600 to have a summary prepared. Multiply that by 50 and it will cost close to $80,000 to have your case's depositions summarized.

Using current bill rates, it makes sense then, that corporate counsel would seek ways to minimize the use of deposition summaries prepared by their counsel, especially in light of technological search engines. However, is this being "penny-wise and pound-foolish?"

If you have outside counsel working on a case that involves 50 depositions, chances are, there is an entire team dedicated to your litigation ranging from partners to paralegals. One or two attorneys attended the actual deposition, but the rest of the team must rely on searches to find the relevant testimony. You now may have as many as five to ten professionals with bill rates ranging from $75 to $450+ an hour spending significant time trying to learn the testimony without actually reading it. Each professional may conduct the same search any number of times. Your team could spend hundreds of thousands of dollars reviewing and searching testimony throughout the course of litigation.

Fortunately, a deposition summary only needs to be done once and can be used by the entire team as a reference for the duration of the case. Hours of search time could be condensed down to minutes per person reviewing a summary of the transcript.

Deposition Summary Strategy

There are ways to control costs related to testimony review and search while not overtaxing your outside counsel's resources or your budget. If your case is not under seal and is likely to involve a number of deponents, you should consider outsourcing the summary of depositions. Deposition summaries allow outside counsel to quickly review testimony and spend their valuable (and costly) time on those witnesses with relevant information. In addition, each member of the litigation team can quickly review each deponent's testimony and determine its relevance to their particular area of inquiry or responsibility. Combining deposition summaries with the advanced search engines available today can streamline the efforts of the litigation team and allow them more time for substantive strategy and consideration.

As with everything, not all deposition summary providers are equal. There are several components you should consider when determining whether to outsource and to whom.

1. Rates. Most deposition summary services offer billing by the page rather than by the hour. Billing in this manner keeps your costs fixed regardless of how long it may take to summarize each deposition. In addition, confirm what the rate includes. There may be surcharges for overnight couriers, expedited service, or supplies. Know what, if any, surcharges you will be invoiced for.

2. Quality. Your deposition summaries will not help unless they are accurate and concise. Your provider should provide a quality control process that checks the summary for consistency of format, accuracy, length, and typographical errors. The quality control process works best if someone other than the individual who completed the summary conducts the final review. It is difficult, if not impossible, to carefully review one's own work.

3. Security. Consultants should sign a confidentiality agreement and the service provider should have mechanisms in place to avoid conflicts of interest. The provider should facilitate additional conflicts checks or specialized confidentiality agreements at your request.

In addition, consultants should work on secure computers at the provider's office or through a web-based application that allows work product to be captured on-line in a password-protected environment. If consultants work using their own computers and save the work product to their personal hard drives, you may want to consider additional measures to protect the work product.

4. Credentials. Seek providers who screen their candidates. They should interview, verify education, check references, and train and test them. Paralegals, law students, attorneys, and reporters are excellent consultants. Remember, you are seeking an accurate, concise summary, not someone's interpretation of the testimony.

In addition, determine whether you can request consultants with specific credentials or backgrounds. You may have a case in which a scientific background would be helpful for summarizing expert testimony. Conversely, you may want to exclude certain consultants. You may want any qualified candidate that lives outside of your locale because your case has been high profile and you prefer that no one from that area work on it.

5. Customized formats. You should be able to choose either a page-by-page summary or a topical summary and review samples of each. In addition, the provider should accommodate such other formats that you or your outside counsel request. Ask for a customized sample as well to determine the quality of the work product, and how well the provider will meet your specific needs.

6. Volume capability. Ask your provider about their capacity. How many people do they have available to perform the work? The provider should be able to give you a realistic view of how many depositions they can do at one time and their standard turn-around time. Determine whether they have an expedited service and whether there is a surcharge for that service.

7. End product. The provider should accommodate the way you would like to receive your deposition summaries. If the summaries will be loaded into an electronic database, determine whether they can customize the file for you. You should be able to receive the completed summaries via e-mail, CD, hard copy or other format that you request.

Conclusion

Whether you outsource or use outside counsel's resources for deposition summaries, consider the real cost of doing without them. Most veteran attorneys who began their practice using deposition summaries have not warmed to the trend of doing without them, and for good reason. Reviewing depositions through text searches alone can be more time consuming, less accurate, and more costly than if your legal team uses deposition summaries in conjunction with search engines. Given the quality, timeliness and security of work product available from today's leading providers of outsourced deposition summaries, a return to the good ol' days may be appropriate.