Transcript Management Software - When do you need it?

"What's the best way to store and read deposition transcripts?"

I spend a lot of time talking with attorneys, paralegals, and litigation support people about managing litigation files.  The question above is one that comes up frequently.  It's also frequently followed by this: "Everyone should always access deposition transcripts using transcript management software."  That's a fairly natural reaction.  There are some great pieces of transcript management software out there (for example, TextMap and Opus2), and they have remarkable capabilities, including full-text searching, exhibit linking, and video synchronization. 

But in my experience as a litigator for the last twenty years, this answer isn't quite right.  Most of the time, you don't want to use transcript management software to access deposition transcripts.

Transcript management software is a critical tool, but only for a very specific portion of litigation, primarily just before trial.  The rest of the time (including during depositions themselves, as well as during motions practice, expert discovery, summary judgment, etc.), it is at best overkill and at worst introduces inefficiencies and disorganization.  

Why is that?  Let's take it in two bites.  First, when should you definitely use transcript management software.  Second, when is it going to get in your way.

Transcript Management Software - Can't Go To Trial Without It

In my experience, transcript management software is indispensable at a very specific time in the litigation life cycle, namely, when you are getting ready for trial.  In particular, it makes two critical parts of trial prep much easier: deposition designations and preparing designated clips to play for the jury.

One of the reasons for taking depositions during discovery is to preserve evidence from witnesses who may not be available at trial.  The meaning of witness "unavailability"  is its own topic, but a common example is a witness who is likely to be outside the jurisdiction at the time of trial.  The way such deposition testimony is presented to the jury in this situation is by either reading the transcript into evidence or, more commonly, playing the video of the deposition.  But before this can happen, the court needs some way to know which portions of the deposition are going to come into evidence and whether or not there are evidentiary objections to those portions.  Rather than doing that live, in front of the jury, every court I'm aware of handles this during pre-trial using the "deposition designation" process.  

The process of doing deposition designations goes something like this.  The side that wants to present testimony by deposition goes through the transcript and identifies the portions it wants to present to the jury.  The other side then looks at those portions and identifies any evidentiary objections it has to that testimony and any additional pieces of testimony (counter-designations) it thinks in fairness need to accompany the designated clips.  Then, the initially designating side responds to the objections and adds any objects it has to the counter-designations.  It's also common for both sides to want to affirmatively designate testimony from the same witness, which means this process happens twice, in parallel, for each witness. 

The key take away from the description above is that the process involves a lot of designations, counter-designations, objections and responses.  Imagine doing that with a box of different colored highlighters and notes in the margins (as we did when I was a young associate).  It's a huge pain.  And it doesn't get much better when you try to do it with an off-the-shelf PDF tool, like Acrobat.

Once the court has ruled on the admissibility of the various designations, most lawyers will choose to present this deposition testimony to the jury by playing the corresponding video from the deposition.  You do have the option of just reading it into the record, but the conventional (and correct) wisdom is that you are less likely to hold the jury's attention if you do it that way.  Depositions tend to be dull in the best of circumstances; you only make it worse by having them acted out by two lawyers.  Trying to create these clips manually by referring back to deposition designations is a massive, expensive, time-consuming effort.  

Transcript management software is invaluable in both these situations.  I'm not going to claim it makes deposition designations fun, but it greatly simplifies the organizational nightmare of managing designations, objections, counter-designations, and responses.  Transcript management software also helps with the jury clip creation by automatically syncing the deposition video to the transcript and facilitating the creation of final clips for the jury.  In these two areas, transcript management software is a huge benefit, and if you aren't taking advantage of it yet, you should consider it.

Before Trial - You Aren't Going To Use It

But what about before trial?  Do you need trial management software then? The answer is -- not so much.  Before you start preparing for trial, most attorneys find that transcript management software doesn't add that much value and can often get in the way.  Look for yourself.  How many attorneys do you know who are reading depositions in transcript management software (other than when working on deposition designations)?  I'm pretty confident the answer is almost none. 

The vast majority of attorney I know are consuming depositions by having them printed out or reading them on laptops or iPads as PDFs.  In fact, I'd wager that most lawyers -- unless they are in the middle of s deposition designation project -- don't even know how to find their firm's transcript management software.  It's certainly true of partners!  If they want a transcript, it is going to be printed for them in a binder or e-mailed to them as a PDF.

This actually makes sense.  When lawyers are reading depositions before trial, it is almost always for one simple reason -- to find out what the witness said.  They want to know if the witness said something that will advance the lawyer's knowledge of the case, that will help them figure out what to ask in an upcoming deposition, that will help them prepare a witness for possible lines of questioning, or that might persuade the court of something in an upcoming motion.  

When that's all you want to do -- read what the witness said -- transcript management software doesn't help you much.  You don't need a complicated annotation scheme, you don't need video synchronization, you don't need exhibit linking.  You don't really need anything more than the ability to highlight key portions (or read key portions someone else highlighted) and maybe take a note or two.  Transcript management software doesn't add much here above what you get with PDF annotations or even hardcopy printouts and a yellow highlighter. 

And worse, in these situations, transcript management software can get the way and make you less efficient.  This is for several reasons:

• It's a different reading experience.  Reading transcripts in transcript management software doesn't feel like reading that you are used to.  It's a new interface to learn, and you have to learn new habits for annotation and note taking.  Are you someone who likes highlighting your depositions with a highlighter and writing notes in the margins?  You probably can't do that with your firm's transcript management software.
• It's separate from your documents.  Lawyers typically don't want to read transcripts in isolation.  They want to read them along with other materials relevant to the task they are working on.  If you are getting ready for a witness prep, you might want to read the transcripts of depositions that discussed your witness along with documents about your witness and your notes from prior interviews with that witness.  Those things aren't going to be in your transcript management system.
• It's not portable.  Some transcript management products are starting to come out with companion iPad apps, but it's early days.  For the most part, if you are reading a transcript using transcript management software, you are doing it on your laptop.  That's often not convenient.  Lawyers want to be able to read wherever they are: back of an Uber, on a plane, at home on the couch, wherever.  It's just easier and more convenient to have a printed copy or a PDF on your iPad.
• You aren't always reading final transcripts.  Perhaps a small point, but a lot of what lawyers read are not final deposition transcript, but "roughs" (i.e., the transcript before the court reporter has had a chance to fix typos, check against the video/audio, etc).  This is particularly true when you are in the thick of depositions and need to read a deposition your colleague took on Monday to prepare a witness on Wednesday.  These "roughs" are often not compatible with transcript management software or, if they are, confuse things because eventually they are going to be taken out and replaced with the final to use for -- you guessed it --depo designations and video clips.  It's a lot simpler to just print or PDF the rough and read it.

For the majority of a case's lifecycle, using transcript management software to read depositions is like using a Swiss army knife to eat dinner.  It has a lot of functions you don't need, and it's cumbersome for the one function you do.

Why Does This Matter?

OK, so you need transcript management software at the pre-trial stage and not really before that.  If you're a practicing attorney or paralegal you probably knew that already.  And if you are new to this, you were going to find out soon enough.  So what's the point of this post?

It's this -- a lot of times people get seduced by the idea of having one LegalTech tool that does everything in a particular area.  In the context of transcripts, this leads to people thinking they really should only access transcripts through transcript management software.  The result of this kind of thinking varies.  It can lead to unsuccessful or unhelpful efforts to impose case-wide (or firm-wide) policies that depositions can only be stored in transcript management software.  It can lead to splintered solutions where some transcripts end up in transcript management, some in e-mail, and some in the document management system.  Or it can lead to people not using the transcript management software at all because they get too frustrated trying to use it in the middle of discovery.

What these all have in common is that, by thinking transcript management software is the be-all-end-all for consuming deposition transcripts, the result is that no one is actually focused on coming up with a good system for giving lawyers the kind of access they need to deposition transcripts in the middle of the case.  

Lawyers need a familiar, portable way to read deposition transcripts along with other case documents.  That should be the organizing principle for transcript management; not trying to shoehorn everything into the transcript management software.  Yes; put your transcripts in your transcript management software, but don't worry about getting them back out of until just before trial.  For everything else, avoid the frustration and just get people the depositions in the most convenient, accessible format you can.