An Article for Everyone in the Chain, Even You!

If there was anything certain about the litigation industry it would be the uncertainty of it.What might appear to be firm appointment date becomes tentative dates at the drop of a hat.Depositions, like many other litigation related appointments, go away with little, to no notice. Depositions get scheduled, cancelled, re-rescheduled, and quite often cancelled again. That is a certainty that will never change.

A lot about a scheduled deposition can change at any moment. Deposition start times change about as frequently as witness names differ from that on the notice. Depositions get moved and scheduled witnesses get shuffled. Location changes are common. Services like videography get cancelled or added at the last minute, regularly. Unless the proper confirmation takes place, someday, someone, somewhere will drop the ball. The result of a dropped ball is the wrath of a group of upset attorneys, paralegals, witnesses, court reporters and videographers.

Anyone that has been involved with an improper confirmation of a deposition realizes the pain of the breakdown in communication. For any given deposition as many as ten people could be in the chain of communication, therefore the potential for a weak link easily exists. When an attorney, party, witness or service provider fails to get the proper information everyone is to blame.

In order to be assured a breakdown in communication will not occur, it is important to identify those that may be involved in the chain. The discussion of available dates is usually exchanged between secretaries or paralegals. In most cases attorneys agree on potential deposition dates. Most of the time a deposition notice will be issued. The notice usually gets forwarded to parties, attorneys, the deponent, and the court reporter. In many instances that notice will then be forwarded to a second reporter, who may or may not forward it to a third reporter that may actually do the job. The same usually occurs if a video record is also requested and a qualified litigation videographer is to be involved. For many depositions, law office staff will never have direct communication with the service providers that will actually be attending the event.

It is customary for the paralegal to place a single call to a reporting service when scheduling depositions. The same holds true for confirmation. Once he or she passes the ball, can they be assured everyone will be in place and ready to begin as scheduled? I think not.

Because today’s litigation support industry relies heavily on trickledown sub-contracting, there are often many unseen, unheard of service providers playing vital roles in the deposition process. When one considers each support staff connected to each service provider, the potential for communication breakdown becomes an almost certainty. The necessity for great communication to become proper confirmation is often easier said than done, however the legal system has found ways to avoid the disasters of an un-professional game of “Gossip”.

While initial correspondence usually takes place over the phone, it is imperative proper channels of communication are solidified to unsure everyone is on the same page. Weak links can be strengthened through written communications that can be verified. Today email serves as a wonderful tool to exchange information. Because so many individuals may be in the chain, email allows for consistent communication, versus that provided by telephone. Communication gets timestamped and confirmation cannot be denied.

Every communication should be documented. Email threads should be maintained before, during and even after the deposition. When one documents communications one can identify people, places, things and situations that make the deposition process flow more smoothly. When direct email correspondence is not possible all phone communications should be promptly followed by written correspondence at the first possible opportunity. Documentation provides necessary information for preparation, production and often can identify potential degradations in the communication chain.

Proper communication and thus proper confirmation begins with the initial scheduling of the deposition. In most cases, the first communication tool is the deposition notice. The deposition notice, depending on jurisdiction, will contain the following information:

• Deponent’s Name
• Caption or Style
• Cause, Cause or Action Number
• Deposition Location
• Deposition Date
• Deposition Start Time
• Reporting or Recording Method
• Attorneys of Record
• And many times the service provider hired to document the process.

All of these components are important to the service provider, deponent and party representation. Each of these components must be exchanged and confirmed by and with everyone involved in the process. Each person involved should be provided with a copy of the deposition notice as soon as possible. It is important to stress that a deposition notice is merely a place to start when confirming, as it is not uncommon for deposition notices to be amended. When changes in any component of the deposition process occur, all relevant information must be exchanged with every individual in the chain. Amended notices must be forwarded to the proper personnel. If no amended notice has been created, yet information has changed via verbal communications, everyone should be informed as soon as practical.

Persons of contact within communications may change from the time a deposition is scheduled to the time it actually takes place. In many cases, exchanging previously disclosed information going to one party may need to be subsequently sent to a newly created link. Because confirmation often takes place at various intervals (most concerning is the day before the deposition), some individuals may not be privy until that time. This phenomenon normally happens in the services sector, but may also happen when an attorney is asked to sit-in on a deposition last minute.

When is the best time to provide final confirmation?

For most that is late in the afternoon on the day before the deposition. For others, confirmation is best made as soon as possible. When a deposition is confirmed between 3:00 pm and 5:30 pm the day before, the window of cancellation probability is tight enough to have some reliability, yet wide enough for service providers to put final communications into place. Most often individual videographers and reporters do not get assigned to depositions until the late in the game.

When a deposition is scheduled on a Monday normal business hours do not provide for weekend communication. However, opportunity for contact must always be available everyday of the week and at every hour of the day. It matters not which link you are in the chain. It is everyone’s responsibility to confirm information surrounding depositions. Practical delivery of information must always be present.

In today’s world the telephone is often the best tool for firming up the particulars in many situations. This is especially true for those times when persons are in route to the deposition in question, and email connections may not be available. Regardless, if you have direct contact with a law office, cell phone numbers are very useful.

As if early Monday morning depositions and the weekend does not create enough potential breakdowns, how about those depositions that are scheduled late in the day. Depositions that are scheduled for after hours, but confirmed the day before provide a window of opportunity for the uncertainty of litigation to negate a previous confirmation. Just because a deposition is scheduled and confirmed does not mean it will actually take place until the deponent has been seated and sworn.

So what happens when someone does drop the ball?

If an expert is improperly informed the attorney suffers, the paralegal suffers and the case suffers. Many experts will charge for time taken out of their schedules even if the deposition will be rescheduled. Ill feelings are almost always guaranteed, and that will happen even if a service provider failed to appear.

Now what if a service provider does show up but no one cared enough to inform him or her that the deposition cancelled the evening before? Many service providers will charge cancellation fees based on the lack of common courtesy, and rightfully so. Here is one thing to keep in mind if you are law office personnel: many service providers will not charge cancellation fees even on short notice if your provide notice as soon as you get it. Of course, an indication the deposition will be rescheduled plays a role in this billing decision.

Depositions are an expensive part of the litigation process. Time and money are valuable to everyone involved. With that being said everyone involved has the responsibility of confirming each and every deposition. There must be an assumption you will not have a deponent, you will not have a location, you will not have a service provider unless proper confirmation takes place. The only way to be assured everyone will be at the location on time and ready to roll is by providing proper confirmation. If you think it is not your responsibility, think again.