Harnessing Non-Stenographic Depositions & AI in Litigation

A New Dawn for Trial Lawyers

 

by Karl Seelbach & Charles Peckham

The legal world, known traditionally for its reliance on stenographic record-keeping and face-to-face interactions, is undergoing a seismic shift. With the proliferation of Artificial Intelligence (AI) software and modern technology, attorneys nationwide are leveraging non-stenographic deposition software to streamline litigation processes, save costs, and bolster their case presentations.

Rethinking Depositions: The Rise of Non-Stenographic Methods

Stenographic depositions, while effective, are time-consuming and can be costly. On the other hand, non-stenographic depositions utilize modern software to capture, transcribe, and analyze testimonies, revolutionizing the way attorneys gather and present evidence. These depositions might involve video recordings, digital transcripts, or other means of capturing testimony without a live court reporter.

Attorney Charles Peckham in Houston, Texas, explained how he has been using non-stenographic methods in his law practice even before the rise of Zoom depositions during Covid-19:

“For years, I have recorded witness statements by video. I would swear in the witness as I am a notary, not unlike an affidavit, would then take a short statement.  Once back to my office, I would send the statements to a court reporter for transcription and then would provide it to opposing counsel.

In 2015, I began exploring the use of non-stenographic recordings for depositions, a practice I learned had already been adopted by some trial lawyers in Texas. After researching the rules, I started handling depositions myself for the first time, without involving a court reporter.

My process was that I purchased a very good video camera with a 160GB hard drive, purchased a good tripod, and bought microphones like the videographers have.  I would notice the deposition and put in the notice that I was going to swear in the witness and would act as the videographer. I would give 30-days notice to give the other side plenty of time to object. None did. I prepared a script similar to what a videographer would use, ensuring a smooth process for reading in and out.

I would arrive half an hour ahead of time to set up and test the camera. I used an audio recorder as backup. I would read in, swear the witness and conduct the deposition.  

After, I would go back to my office and upload the video to a transcription service and would get a rough transcript back days later. I would then check it at 2x speed and make corrections myself along with the video. I would then provide the transcript, the video, and my attestation to all counsel.  While time-consuming, the overall costs were significantly reduced, roughly by 50% or more savings than the expenses associated with using a court reporting agency, and in many cases that would otherwise not justify the cost of depositions, I could take several and increase the value of cases.

Then came the COVID-19 pandemic.

I was able to apply the same methods using what became the standard, Zoom instead of a video camera. Since 2020, I have not taken a single state court deposition with a court reporting agency, much less a court reporter or videographer. I have taken only a handful of federal depositions with a court reporter, and that was only in multi-party cases or very rare occasions where opposing counsel objected prior to the deposition.   

Now, there are software companies that can help you do this without the hassle and the outlay of capital for equipment or post-event proofreading, and also at half or less of the cost of videography and court reporting. For my law practice, I use Skribe.ai.”  

Are Non-Stenographic Depositions Legally Permissible?

A common question is do courts permit non-stenographic depositions captured by attorneys using video/audio, rather than stenography? Yes. For decades federal and state rules have permitted non-stenographic recording of testimony (e.g., by phone or video). 

The federal rules were amended in 1993 to allow for non-stenographic depositions.

In 1993, the use of technology was not very advanced and the rules, though allowing non-stenographic depositions, are woefully inadequate when it comes to new technology and new logistics post-COVID.  

It is still difficult to teach the old lawyer-dog new lawyer-dog tricks. There is still some push back that a good explanation of the federal rules will help assuage.

For example, FRCP 30(b)(3) provides “testimony may be recorded by audio, audiovisual, or stenographic means.” In fact, the comment to the federal rules mentions that non-stenographic transcripts are sometimes prepared by staff for the attorney. Fed. R. Civ. P. 26, Notes of Advisory Committee on Rules-1993 Amendment (“A party expecting to use at trial a deposition not recorded by stenographic means is required by revised Rule 32 to provide the court with a transcript of the pertinent portions of such depositions. This rule requires that copies of the transcript of a non-stenographic deposition be provided to other parties in advance of trial for verification, an obvious concern since counsel often utilize their own personnel to prepare transcripts from audio or video tapes.”) (emphasis added).

Almost all states have similar rules and non-stenographic depositions have been permissible for many decades. See, e.g., Tex. R. Civ. P. 199.1(b), (c); see also Tex. R. Civ. P. 203.6(a) (“A non-stenographic recording … may be used to the same extent as a deposition taken by stenographic means.”). Some states require stipulations, but most do not.

Three Reasons to Embrace Non-Stenographic Software

According to the NCRA - The Association for Court Reporters and Captioners, the average age of today’s court reporter is 55+ with only 27,000 remaining (https://www.ncra.org/home/about-ncra/NCRA-Statistics). In comparison, there are almost that many attorneys in the Greater Houston, Texas area alone.  

It is getting harder to find court reporters, especially at the last minute.  With the advent of technology, it is unlikely the court reporter population will increase. Basic economics tells us that when supply decreases, demand increases, and costs rise.  

Due to the growing stenographer shortage and the rising costs, as well as the rapid pace of technological innovation, there can be no question that the future of capturing testimony is software. Now is a great time to embrace this new method, significantly reducing your costs and speeding up your processes.

You can utilize a DIY method, like I described above, or use a platform like Skribe.ai that makes it simple and very cost effective. Either way, you’ll be saving money and time and getting your practice future-proofed from the growing shortage of court reporters and rising costs.

Why should trial lawyers consider this transition?

  • Cost and Time Efficiency: Switching to non-stenographic depositions and AI software eliminates the need for a human stenographer, leading to substantial savings and faster transcript turnarounds.
  • Enhanced Accessibility: Modern software allows for easy extraction of specific segments or clips from the deposition. This means lawyers can swiftly pinpoint and utilize crucial evidence without sifting through pages of transcripts.
  • Impactful Presentations: Technology enables us to incorporate video clips from depositions directly into demand letters, briefs, and reports, providing a more persuasive visual medium that enhances the impact of a testimony.

 

Embracing the Future: Mastering Modern Deposition Software

One of the cornerstones of this evolution in deposition technique is the software. Litigators and their firms can enhance their productivity and deliver better client service by adopting and mastering the use of technological tools and software systems available today. Being tech savvy is no longer a good idea, it's becoming a necessity.

Innovative platforms such as Skribe.ai provide user-friendly interfaces that greatly simplify the process of managing, analyzing and clipping testimonies. When used effectively, such software can amplify the impact of an argument, allowing juries to see and hear crucial pieces of evidence firsthand.

Change can be intimidating, especially in professions steeped in tradition like the law. However, as technology continues to evolve, so too do the opportunities it presents. By harnessing the power of non-stenographic depositions and AI software, trial lawyers can position themselves at the forefront of the legal evolution, offering more dynamic, efficient, and compelling services to their clients.

Karl Seelbach, a partner at Doyle & Seelbach PLLC, and Charles Peckham, a partner of Peckham Martin, PLLC, are not only advocates for this shift but are also leveraging these advancements in their respective law practices. As we continue to navigate this age of rapid technological advancements, it's crucial for legal professionals to stay informed, adaptive, and open to the vast potential these innovations present.

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