Tales of two oral depositions – the old and the new

I recently attended two oral deposition-taking which, in a technological sense, reflected the wide gulf between our world and that of its developed countries, even in respect of judicial processes. The stark contrast struck me because the two deposition incidents were held only five days apart.

"Deposition", in its technical and appropriate sense, is the written testimony of a witness given in the course of a judicial proceeding, in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination. One deposition was for a Philippine case taken in Singapore before the Philippine Consulate involving Filipino lawyers taking the deposition of a Singaporean witness. The other was for a California case taken in Makati before a court officer in a tele-video facility in Makati, involving US lawyers (I was assisting one side) taking the deposition of a Filipina witness.

In the Singapore deposition, the Filipino lawyers (at least nine) flew to Singapore, together with the Clerk of Court and a party to the case as observers. The deposition officer was a Philippine Consul and the recorder was an embassy employee who took old-fashioned stenographic notes (although she had a back-up to her notes, i.e., a tape recorder – the only concession to modern technology). The stenographic notes had to be transcribed, of course, as the record of the proceedings. After the testimony of the witness, the counsel for the deposed witness reserved the right to review the transcripts before his witness will sign the same. Thus, it is apparent that the Filipino lawyers may have to go back again to Singapore for the review and signing of the transcripts – not to mention possible lengthy arguments on corrections which may likely be proferred by the witness – forgetting for the moment what the lawyers could do. The review will be minuted and likely recorded by stenographic notes. Thereafter, the deposition officer will mail or transmit the signed transcripts of stenographic notes and minutes to the Philippine Court.

In the Philippine deposition, the arrangements were made by phone or e-mail. The US lawyers made arrangements for (i) a court officer to be present to administer the oath and act as deposition officer, and (ii) an audio-visual facility where a technician would record the proceedings and ensure that the US lawyers and parties would have an audio-visual link to see and hear the proceedings in the Philippines as well as those in attendance in the Philippines would see and hear those in the US. As soon as the audio-visual link and recording were in place and confirmed, the deposition started by one US counsel conducting his oral examination of the witness in the Philippines via long distance and thereafter followed by the other side. The answers and demeanor of the witness were both faithfully recorded in the video tape of the proceedings. The representatives of the parties in the US not only observed the proceedings, but also participated by passing notes to their US lawyers who invariably asked questions based on the notes passed. While the court officer will also transcribe her notes and tapes, the same appeared to be a mere surplusage as the audio-visual record or video-tape of the deposition is clearly more important. Moreover, there was no argument as to what the witness said and how it was said. There was also no need to authenticate the video-tape which was immediately reproduced for each party. The original video-tape will be mailed directly to the US Court, together with the transcripts, by the court officer.

The contrast was evident. With the use of modern technology, the US lawyers and parties did not have to travel abroad and incur substantial expense to take part or participate, in depositions in a foreign country. The accuracy and faithfulness of the technology recording the process eliminated the need for the witness (and the counsel of parties) to review and authenticate the record (by signing the transcripts) and therefore avoided the attendant cost, expense and time for a second trip. More importantly, the demeanor of the witness as she testified on both direct and cross examination was likewise captured and can be appreciated by the judge or jury who will ultimately evaluate the veracity of her statements and her credibility.

I believe the time is ripe for our Supreme Court to review our Rules of Court to adopt, and adapt to, modern technology not only in taking of depositions but in all aspects where modern technology is currently being utilized to facilitate and expedite the judicial process. For one, certain motions can be argued by teleconferencing. Similarly, court hearings could also be scheduled or re-scheduled through teleconferencing. For trial lawyers, wouldn’t that be a great way to avoid the traffic and the hassle for certain court incidents or motions, specially those that do not need presentation of evidence. More importantly, this would eliminate, or reduce to a considerable extent, the costs of litigations. The possibilities are enormous and we need only look at, and follow the lead of, other jurisdictions where they have successfully employed modern technology to expedite court processes.

(Atty. Victor P. Lazatin is a senior partner of Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He may be contacted at telephone nos. 830-8000/892-1115 or e-mailed at [email protected] or [email protected])