Broken Buildings: Legal Rights and Remedies in the Wake of a Collapse

David J. Pfeffer | Construction Executive

A tragedy transpired on June 24 in Surfside, Florida, when the Champlain Towers South suddenly fell, becoming one of the country’s most deadly unintentional building collapses. It is imperative that construction industry professionals be aware of the legal issues that are raised by such ill-fated events.

WHO IS HELD RESPONSIBLE? 

Who can be held responsible for such disasters lies among several possible parties: 

  • The building’s design professionals, particularly its architects and structural engineers. They are charged with ensuring that the building’s design is safe. They must take many factors into account, including, but not limited to, the materials that are used, the foundation, the weight and the height.
  • General contractors and the subcontractors. General contractors implement the design created by the architects and engineers and are responsible for appropriate materials. The general contractor also supervises the subcontractors aiding with multiple areas of the building’s construction and which also share the responsibility of executing the design and maintaining the building’s structural integrity.
  • The owner of the building may be held liable. Property owners have a duty to examine their properties to discover and fix any hazardous conditions that are present, and they must do so with reasonable care. Property managers might also share the burden of responsibility and could very well be held responsible for failing to perform proper maintenance.
  • Building inspectors can be blamed if they do not report a dangerous condition that threatens the safety of the structure.
  • Equipment and material suppliers. Undetected defects in equipment or materials can cause a structure to fail.
WHO PAYS?

Construction professionals need to be aware of whether the damages that result from a collapse will be covered by insurance.

Collapse language is usually found in the additional coverage section of a property’s insurance policy and typically includes an independent insuring clause, an independent list of exclusions and an independent list of exceptions to exclusions. Often, insurance policies that permit coverage for abrupt collapse will require various conditions to be met in order to warrant coverage. 

Regarding the collapse in Surfside, the primary questions are: What caused the collapse? Was the cause previously known to, or at least reasonably discoverable by, the insured? 

If the cause was unknown, or not reasonably discoverable to the insured, the insured might be able to secure coverage. However, if it was due to one of various excluded causes, such as normal wear and tear, bad repairs, deterioration or neglect, and the parties were aware of such conditions, they may be barred from coverage. If there are multiple causes for the collapse, professionals should check their policies for any anti-concurrent causation language, which is used to disqualify coverage for losses that are partly induced by both an excluded cause and an included cause. Also, pursuant to Florida law, false information in an insurance application, intentionally or unintentionally, can void the policy. 

WHO CAN SUE AND WHEN?

After determining which parties can be sued to remedy the harms of a collapse, it is crucial that the action is brought in a timely manner, and time restrictions vary by state. In New York, the statute of limitations for malpractice claims, other than medical, dental or podiatric, is three years from the completion of the project. There is currently no statute of repose in New York to act as an absolute cutoff on construction claims; however, there is a bill moving through the state’s legislature, proposing to institute a 10-year statute of repose, which is common among many states. 

Florida’s statute of limitations for negligence cases is four years. The general rule in Florida’s construction cases is that the statute of limitations begins to accrue at the completion of the project, but if the defect is latent, then it begins to accrue at the time that the defect was, or should have been, discovered with reasonable due diligence. Florida also has a statute of repose for construction claims, which is 10 years from the date of completion; counterclaims, cross-claims and third-party claims that arise out of the same controversy may be brought within one year from the commencement of the action, regardless of whether they fall within that 10-year restraint.

HOW DOES THE ENVIRONMENT FACTOR?

Construction professionals should consistently strive to prevent such accidents from happening. Learning about environmental factors that can lead to a building’s collapse is an essential consideration. The collapse in Surfside made many people ask whether climate change played a part and whether South Florida’s extreme exposure to rising sea levels could lead to the destabilization of other structures. 

In South Florida, the sea level is about eight inches higher than it was 100 years ago, and it is expected to increase—with an additional 17 inches predicted by 2040. To make things worse, the region sits on a bedrock of porous limestone, which allows saltwater to rise through, causing flooding without rain. Although the role of the sea level in this particular collapse is not entirely clear, it certainly poses a threat to other buildings. Saltwater, which corrodes both steel and concrete, can rise through the porous bedrock and weaken foundations. The idea of building a large sea wall to prevent ocean flooding in Miami is no defense against underground water. 

At present, construction professionals must be extremely vigilant when examining foundations and immediately fix cracks or defects.

As technology and education advance, the construction of buildings ideally will reach a point of quality and durability that will avoid such tragedies in the future. However, with the knowledge that non-deliberate structural collapses can still happen, it is in the best interest of construction professionals to be aware of the many issues that these kinds of catastrophes raise.  

Washington State Supreme Court Issues Landmark Decision on Spearin Doctrine

Cameron Sheldon | Ahlers Cressman & Sleight

The Washington State Supreme Court’s recent decision in Lake Hills Invs., LLC v. Rushforth Constr. Co. No. 99119-7, slip op. at 1 (Wash. Sept. 2, 2021) marks the first time in over 50 years that it has ruled on the Spearin doctrine. The Court’s opinion clarified the contractor’s burden when asserting a Spearin defense and affirmed the jury’s verdict in favor of contractor AP Rushforth Construction Company (AP).  The decision is a major win for Ahlers Cressman & Sleight PLLC attorneys Scott Sleight, Brett Hill, and Nick Korst, who represented AP throughout its long-running dispute with Lake Hills Investments, LLC (LH), including the two-month jury trial and the appeal. Leonard Feldman of Peterson | Wampold | Rosato | Feldman | Luna and Stephanie Messplay of Van Siclen Stocks & Firkins also represented AP on appeal.  

At trial, the owner—Lake Hills Investments, LLC (LH)—asserted it was entitled to $3 million in liquidated damages and $12.3 million for defects it alleged were caused by AP’s deficient workmanship. AP denied responsibility for the delays and most of the defects and requested payment of $5 million. Regarding LH’s defect claims, AP argued as an affirmative defense that the defects were caused by deficiencies in the plans and specifications provided by LH. This affirmative defense was rooted in the Spearin doctrine, which states that when the contractor follows plans and specifications provided by the owner, the contractor is not responsible for defects caused by the plans and specifications.  

After much back and forth over how to instruct the jury on the defect claims, the trial court instructed the jury as follows: 

For its affirmative defenses, AP has the burden to prove that LH provided the plans and specifications for an area of work at issue, that AP followed those plans and specifications, and that the [construction] defect resulted from defects in the plans and specifications.  

The jury returned a verdict in favor of AP.  The jury awarded AP $5 million on its payment claim, rejected LH’s liquidated damages claim, and awarded LH $1.5 million for defects (some of which were conceded by AP), finding that AP had performed defective work on six of the eight areas of claimed defects. But the jury awarded no damages for certain defects, indicating that it may have agreed with AP that the cause of the defect was LH’s defective plans and specifications. Ultimately, the court awarded AP a net judgment of over $9 million, including nearly $6 million in attorneys’ fees, expert fees, and costs.  

LH appealed, claiming the trial court issued incorrect jury instructions regarding AP’s affirmative defense. The Court of Appeals agreed, holding:  

[P]roof of any defect in the plans and specifications for that area contributing to a construction defect would let AP avoid all liability for that area even if Lake Hills proved AP’s deficient performance caused some of the damage. This instruction incorrectly understated AP’s burden of proof. 

According to the Court of Appeals, the instruction as given “clearly misstated the law,” and the instruction would have adequately stated the law had it included the word “solely” as LH requested. The court reasoned that the instruction provided to the jury allowed the jury to absolve AP of all liability for an area, even if only part of the defective work resulted from defective plans and specifications.  

AP petitioned the Washington State Supreme Court for review. On June 24, 2021, the Supreme Court heard oral arguments. A recording of the parties’ oral arguments can be found here: https://www.tvw.org/archives/.  

The Supreme Court reversed the Court of Appeals and ruled that although the wording of the trial court’s Spearin instruction was “potentially misleading,” it was not prejudicial to LH because it allowed the jury to apportion fault between LH and AP and “the jury had every opportunity to award LH damages based on claims for each breach of contract.” No. 99119-7, slip op. at 18. The Court explained that a Spearin affirmative defense can be used to absolve the contractor of all liability or only a portion of liability: 

An affirmative design defect defense is a complete defense if the damage is solely due to the design. However, if the defects were caused by a combination of deficient performance and deficient design, then it is not a complete defense.  

Id. at 16.  The Supreme Court recognized that the Spearin defense may be used by a contractor to reduce liability rather than totally escape it. The Supreme Court rejected the all-or-nothing reasoning of the Court of Appeals. While the Court of Appeals viewed the Spearin defense instruction as improperly allowing the jury to absolve AP of fault so long as deficiencies in LH’s plans and specifications contributed in some way to the defects, the Supreme Court understood that the instructions as a whole intended for the jury to apportion liability appropriately between AP and LH based on whether the defects were caused by the work AP performed or the plans and specifications LH provided.  

The Supreme Court’s reversal means the jury verdict stands and the case will not be retried. However, the Supreme Court remanded the case to the Court of Appeals to consider LH’s arguments on to the trial court’s award of attorneys’ fees, which the Court of Appeals did not reach in its earlier decision.   

Commentary 

The Supreme Court’s opinion is the first time the Court has considered Spearin in 50 years, and it provides an essential clarification of the contractor’s burden when asserting a Spearin defense. In particular, the Court’s decision reaffirms clear precedent limiting a contractor’s liability for defects when the contractor follows the owner’s plans and specifications, as well as Washington’s public policy allocating risk and liability between contractors, owners, and architects (among others) on construction projects. Importantly, the opinion indicates that a contractor can still use a Spearin defense to reduce its liability even if some defects were caused in part by its own deficient work.  

Contractor Succeeds At the Supreme Court Against Public Owner – Obtaining Fee Award and Determination The City Acted In Bad Faith

Lindsay T. Watkins | Ahlers Cressman & Sleight

A contractor won a rare but much-deserved victory at the Supreme Court on July 8, 2021 in Conway Construction Co. v. City of Puyallup, 197 Wn.2d 825, 490 P.2d 221 (2021). The case, which involved an aggressive stance by a public owner:

  • confirmed that the public owner bears the burden of demonstrating a termination for default is justified,
  • reaffirmed the requirement to provide an opportunity to cure, and
  • rejected the public owner’s attempts to escape its own contract language that the contractor relied upon.

John Ahlers and Lindsay Watkins of Ahlers Cressman and Sleight and Jamie Becker of Osborne Construction submitted the Amicus Brief for the Associated General Contractors (AGC) of Washington in support of Conway to the Supreme Court.

In the spring of 2016, the City of Puyallup terminated Conway Construction (“Conway”) for default from a road and utility project. At the time, Conway had numerous pending claims filed for changes and a quantity dispute. The City, however, alleged that certain portions of the work was defective. Despite Conway’s and its subcontractor’s attempts to remedy the issue, the City rejected Conway’s attempts to resolve the dispute and terminated Conway for default. After the termination, Conway filed a declaratory judgment action in Pierce County Superior Court to convert the default termination to one for convenience. In addition, after the City denied Conway’s certified claims, Conway amended its complaint to seek damages. Notably, also after the termination, the City identified additional alleged non-conforming work but did not provide Conway the opportunity to cure. However, the City did seek these costs from Conway as part of the litigation.

The trial court bifurcated the case and heard the termination issue first.  Applying Federal Court of Claims precedent, which required that the City demonstrate termination was justified, Conway prevailed and the Court overturned the default termination and converted it to a termination for convenience. 

In the next phase of the trial to determine damages, the trial court again ruled for Conway, awarding Conway damages for its contract balance and a number of Conway’s claims. In addition, pursuant to an attorneys’ fees clause in the contract, the trial court found Conway to be the prevailing party and awarded Conway $1.1 million in attorney fees. The trial court rejected the City’s arguments that (i) RCW 39.04.240—a statute that provides an avenue for the award of attorneys’ fees in public works construction contracts (provided an offer of settlement is issued)—was the exclusive remedy for attorneys’ fees, and that (ii) the contractor’s failure to make an offer pursuant to RCW 39.04.240 when it was relying upon its express contract language.

On appeal, the Court of Appeals affirmed most of the trial court ruling but reversed and denied the award of attorneys’ fees, concluding that RCW 39.04.240 was an exclusive attorneys’ fees remedy. Both sides appealed. 

The Washington Supreme Court’s decision reversed the Court of Appeals and provided three key decisions in favor of Conway:

  • Termination for Default:  The Court affirmed the trial court’s ruling that the default termination was improper and should be converted to a termination for convenience. Notably, the Court found that the City breached the implied duty of good faith and fair dealing that exists in all contracts because the City’s actions leading up to the termination (e.g., refusal to cooperate or discuss potential repairs) were unreasonable. Relying on federal caselaw, the Court concluded that the public owner has the burden of demonstrating its termination for default is justified and that the contractor is in default at the time of the termination, and that the City failed to meet that burden.
  • Opportunity to Cure: The Court held that the City could not make a claim for additional defective work damages discovered after the termination when the City terminated Conway and did not give Conway the opportunity to investigate or repair the alleged defect. 
  • Attorneys’ Fees:  The Court again rejected the City’s argument and concluded that RCW 39.04.240 is not an exclusive attorneys’ fee provision; it held that Conway was entitled to fees pursuant to its contract prevailing party attorneys’ fee provision and reversed the Court of Appeals. As part of its analysis, the Court emphasized that RCW 39.04.240 was a statute designed to address the significant imbalance in bargaining power between contractors and public owners when public owners generally do not include attorneys’ fees provisions in their contracts (contracts the public owners draft), and as found by the Legislature, public owners often “react to litigation as if their attorneys are free.” Conway,197 Wn.2d at 839. Thus, the statute was designed to benefit contractors—not as a weapon by public owners as the City attempted to apply the statute and contrary to the terms of the contract the City drafted.

Comment:  The Conway decision represents a contractor-friendly decision from a Court that has generally leaned toward owners. The City, however, took very aggressive positions—terminating the contractor for default despite Conway’ and its subcontractor’s attempts to remedy the alleged default, attempting to seek additional costs from the contractor after termination, and then attempting to disregard the terms of the Contract drafted by the City to avoid paying attorneys’ fees—that ultimately were rejected and, with respect to the Project level actions, were deemed to be in bad faith. The Court’s rebuke of these actions provides not only a shift towards more equitable contractor decisions but, more importantly, provides additional clarification and framework for contractors who find themselves either in the position of a potential default (wrongful or otherwise) or may need to terminate a subcontractor or supplier (a decision that should be carefully considered and counsel consulted). At its essence, however, the decision is a good reminder that courts will hold the parties to the contracts they enter into and will uphold the implied duty that both parties act in good faith as part of their contract obligations.  

In-Person and Virtual Evidentiary Hearings: Are Hybrid Hearings the Way Forward?

Ben Grunberger-Kirsh and Scott Stiegler | Vinson & Elkins

As parties have adapted to the changes brought about by the pandemic, virtual evidentiary hearings have become more popular.

We discuss what some say are disadvantages of virtual hearings and consider how these issues might be mitigated in practice.

This article asks: what will the future look like, and concludes that some form of hybrid (part in-person, part virtual) hearing may be the answer.

For better or for worse the coronavirus pandemic has ushered in a new paradigm in legal practice. So far as evidentiary hearings are concerned, what were usually in-person affairs have now, it seems, become fully virtual. But, is this a long-overdue development, or a mere blip? We examine the potential pitfalls of virtual construction hearings and explain how they may be avoided, and also look at how arbitral institutions have sought to develop and codify procedures to mitigate these risks. Ultimately, construction professionals may seek to achieve the best of both worlds through the development of the hybrid in-person and virtual hearing.

Of course, virtual hearings are not entirely without provenance. Procedural hearings, emergency evidentiary hearings (on discrete points), and witness or expert testimony via video-link have long been a part of the resolution of construction disputes. The shift brought about by the pandemic has been one of scale. This has led some to worry about due process; one concern being that an award may be susceptible to challenge on the basis that a virtual hearing impaired a party’s ability to present its case.

Most often the concern is in respect of the assessment of witness evidence and the integrity of cross-examination1.  In circumstances where the parties have agreed to a virtual hearing it may be difficult for one party to challenge an award on the basis that the witness evidence could not be properly assessed. However, there are ways to allay concerns around virtual witness testimony. One practical tip is to request expert and factual witnesses to manoeuvre their webcams around the room to show the tribunal that there is no one else in the room, save for anybody whose presence had previously been disclosed. Witnesses could also be required to briefly flick through the documents in front of them, to show they had not been marked up, and to position their webcams such that their whole body above their desk could be seen, rather than just having a view of their head in frame. That way, a tribunal can better see non-verbal cues, as they would have been able to in an in-person hearing.

Even with these measures, it is not to say that the in-person experience can be entirely replicated on-screen. It may be that the testimony of certain witnesses (and assessments as to credibility and reliability) are better done in-person. As Lady Justice Cockerill recently commented: “for most counsel cross examination remotely is not the same as cross examination live”2. For particular key witnesses (or perhaps where there are language barriers, or where a witness would otherwise feel more comfortable) in-person testimony may be preferable. Indeed, there may be a preference for in-person cross-examination for key witnesses in order to ensure, for example, that even brief losses in internet connectivity do not interrupt the flow of the examination.

Documents are at the heart of any hearing and are especially important in construction disputes where the factual record can be voluminous. Particular care needs to be taken to organise and properly present the electronic bundle in a virtual environment. Depending on the court or tribunal’s preference, parties may wish to distribute a hardcopy ‘core’ bundle to sit alongside (or replicate parts of) the electronic bundle, particularly where advocates invite the documents to be marked-up. Similarly, it may be more cost effective to restrict the electronic bundle (if handled by external document management provider) to the key record, and distribute a secure hard-drive of documents for which there will be less frequent reference. This can be particularly important where document management providers do not have access to proprietary software (such as CAD, and Primavera) and files of these types need to be displayed on a virtual platform by a party/client representative instead.

There are many virtual platforms for parties to choose from, including those administered by arbitration centres and institutions themselves (such as the International Arbitration Centre and ICC Hearing Center platforms). Of particular importance is the speaker set-up. To resemble in-person hearings, the tribunal video-feed should appear clearly on-screen with counsel/witnesses also shown. Other participants should, typically, be muted and their video-feeds made less prominent or turned off. If possible, the tribunal ought to be equipped with at least two screens (one to display the documents and/or live transcript and the other to display the advocates/witnesses). One possible further feature is a digital chess clock (to be controlled by the tribunal secretary) to accurately keep time and avoid the all too common disputes over time allocations.

Whatever procedures the parties wish to adopt for virtual hearings, the crucial practical point is to agree all of this ahead of time. To assist, several arbitral institutions have published ‘cyber protocols’ and/or guidance regarding virtual hearings. The ICC checklist (which, at Annex II, provides a draft procedural order) is one of the most comprehensive. It addresses: online etiquette and due process considerations, hardware technical specifications, confidentiality and security, and the presentation of evidence.

One procedure which will need adaptation is the form of the witnesses declaration or oath.  Parties may want to consider addressing that electronic communication devices are switched off but if communications are received, the witness or expert will notify the tribunal immediately.  Furthermore, the declaration may also address the presence of people in the room as well as the documents available to them in the room as discussed above.

Looking ahead, to the shape of evidential hearings to come, we think some form of hybrid virtual and in-person model may ultimately prevail, which idea has already found some support from arbitral institutions. Article 19.2 of the LCIA (and DFIC-LCIA) Rules 2021, for example, provides that: “a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form)”. These final words highlight the need for flexibility in a post-COVID era.

Article 21(1) of the 2021 ICC Rules provides, similarly, that: “…any hearing will be conducted by physical attendance or remotely by videoconference, telephone or other appropriate means of communication”.  Recent ICC guidance also suggests that “the COVID-19 pandemic may mean that it is not possible to hold a face-to-face hearing in a reasonable time and that waiting until it becomes possible would produce unwarranted and even prejudicial delay. Accordingly, a tribunal may, in appropriate circumstances, adopt different approaches as it exercises its authority to establish procedures suitable to the particular circumstances of each arbitration and fulfils its overriding duty to conduct the arbitration in an expeditious and cost-effective manner”.3

Lastly, depending on the facts and circumstances of the dispute, there are various different forms a hybrid hearing might take. For example, some of the tribunal and party representatives may be physically assembled in two locations, with each being connected remotely.  This means that while parties may not all be able to be present in one location due to local COVID restrictions, the parties will benefit from at least some in-person arrangements. As a further alternative, parties may instead prefer to have only key witnesses subject to in-person cross-examination, with the rest of the cross examination being conducted virtually.

Where the parties are willing, there are many possible nuances on how a hybrid hearing could be run.  Parties should consider carefully what form best meets their individual needs and is appropriate to the circumstances, whilst always balancing procedural fairness to both parties, cost effectiveness and efficiency.

1 See, for example, Virtual Hearings: An Arbitrator’s Perspective. Jent Walker, CiArb. “Finally, in evaluating witness testimony, particularly under cross-examination, there is a concern that the loss of in-person observation will impair the tribunal’s ability to assess the credibility and strength of the evidence. It may be difficult to capture the ‘look and feel’ of the witness’s evidence onscreen and to discern body language, facial expressions and tonal changes.” Accessible here. Expert evidence in a virtual era, HKA. “The body language of witnesses has always been presented as a key reason for why witnesses should appear in person.” Accessible here.

2 See Mrs. Justice Cockerill, Learning our ABCs: Thoughts about Commercial Dispute Resolution After Brexit and Covid. Accessible here.

3 See ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic dated 9 April 2020, paragraph 20. Accessible here.

Remote Depositions in the Post-Covid-19 World

Islam m. Ahmad | Wilke Fleury

Remote Depositions in the Post-COVID-19 World

Despite the easing of COVID-19 restrictions in California, many of the changes imposed on the legal industry by the pandemic will likely remain in effect for the foreseeable future. One major change for litigators has been conducting depositions remotely. This change takes an already intricate task and makes it further complex by adding a new dimension of factors to consider. It is imperative that litigators understand these factors to avoid giving their opposition an undue advantage and to maximize the utility of depositions. While we may disagree as to whether remote depositions are a welcome change, the fact of the matter is that lawyers must adapt to them and provide adequate legal representation. This article explores some of the challenges and opportunities presented by remote depositions.

  1. The Deponent

The deponent is the single most important element of any deposition and handing it properly becomes even more delicate in remote settings. I recently took a deposition where the plaintiff met their attorney for the first time at their deposition. The result was not spectacular. The plaintiff was ill-prepared, and the case eventually settled for far less than what it might have if it had been better prepared.

In some cases, deponents testify remotely without their attorneys’ physical presence. This may make them feel less protected and more vulnerable. To manage this risk, additional preparation is necessary. On the other hand, for attorneys taking depositions, this presents an opportunity to elicit testimony otherwise not possible, especially if a defending attorney is distracted in their home or office during long depositions.

Remote depositions require attorneys to be especially vigilant to safeguard against improper influence. The risk of information being conveyed to the deponent by their attorney or others is increased when the deponent is miles away from the attorneys with unlimited access to technology. Attorneys must be innovative and attentive to manage this risk. Steps that can be taken include having the deponent sit alone in a closed room, viewing a 360-degree angle of the deponent’s room before the deposition, and requesting that the deponent’s hands be in clear view of the camera during the deposition.

  1. Preparation

The margin for error is even smaller when preparing for remote depositions. Exhibits must be well-prepared, pre-marked, and, in some instances, sent to the other parties in advance. As such, early preparation is not an option. Attorneys must be strategic in determining how and when they share the exhibits with the other parties. During the deposition, attorneys must be able to seamlessly electronically shuffle between exhibits and share them instantly without creating gaps in the record or interrupting the flow of questioning. For that reason, attorneys must be organized, and their questions must be presented with aforethought.

Further, adequate preparation is required to arrange the technological logistics of remote depositions. This includes securing a strong stable internet connection, operational microphones and speakers, and a quiet room with adequate acoustics. Finally, attorneys must be comfortable with using videoconference software, including filters, screen share, and mute functions to avoid unpleasant situations.

  1. The “Set-Up”

For the attorney taking a remote deposition, it is crucial to arrange it in a manner that ensures command over the proceeding. It is wise to select a court reporter with whom they are comfortable and with whom they have worked in the past. Additionally, it is essential that the court reporter be comfortable working remotely, is familiar with the remote swearing-in process, and is capable of handling electronic documents. Even if all the other parties attend remotely, it is a good idea for the attorney taking the deposition to arrange for the court reporter to be physically present in the same room. This will allow the court reporter to focus on their job and the attorney to maintain command.

In cases where an interpreter is required, an additional layer of complexity is added. It is generally insufficient to have just one connection established with the deponent when an interpreter is utilized. This is because having only one connection means that the interpreter must first listen to the question or answer, write it down, and – only after the person finishes talking – will they be able to interpret. This is a slow, inefficient process. On the other hand, when a second, separate connection is established between the deponent and interpreter, the interpreter will be able to simultaneously translate and relay questions and answers as the parties speak.

There is little doubt that remote depositions are more time-efficient and convenient than in-person depositions. This, combined with the ongoing risk presented by new variants of COVID-19 suggests that remote depositions are likely to remain a key part of litigation practice well into the future. Rather than resist change, attorneys must adapt to this new world and focus on how they can use new technologies for the benefit of their clients, which is the ultimate goal.