Litigating in the Age of Covid: Three Big Things (and the Cat Lawyer)
/As we approach the one-year anniversary of the COVID-19 virus stopping the world in its tracks, my mind wandered to more superficial things this pandemic has changed. Namely—how we litigate . Three big changes jump to mind. Here they are:
Depositions. As part of a lawsuit, the parties engage in “discovery,” which is the process of sharing information with the other parties in the case. This includes producing documents, answering written questions, and eventually, taking depositions. Normally, this involves the lawyers, a court reporter, and a witness gathering in a conference room somewhere with a stack of exhibits. The lawyers get to ask the witness questions under oath about the facts at issue, including any relevant documents. During COVID, more and more depositions (like church, cocktail hours, and conferences) have moved to Zoom. There are advantages and drawbacks to virtual depositions. On the plus side, this eliminates travel costs for attorneys and witnesses. We can save some trees by keeping exhibits electronic instead of printing them all out. However, we lose out on the personal nature of a deposition, where an attorney can see the witness’s body language and facial expressions. If the case involves complex records, it can be more difficult to get everyone on the same page with lengthy exhibits when we are all behind our own computer screens. I anticipate that in the post-COVID world, we will see more virtual depositions for tangential witnesses, but will go back to in-person depositions for key players.
Mediation. At some point in most lawsuits, the parties engage in mediation. Plaintiffs, defendants, insurers, and attorneys normally attend a full or half-day meeting with a neutral third party in an attempt to find a compromise to resolve the lawsuit without trial. Mediators are often former attorneys or judges who help the parties see the strengths and weaknesses of the case. They can suggest creative solutions a court could never offer. Social distancing and lockdowns threatened to derail many mediations—often a party’s best bet of resolution. Fairly quickly, many mediators embraced the new normal and started conducting virtual mediations. Like virtual depositions, this eliminates travel costs. The different video conferencing platforms allow a mediator to host several “rooms,” like she would during an in-person mediation. This is definitely better than nothing and beats the alternative (no mediation). However, without proper preparation and safeguards by the mediator and the attorneys, a virtual mediation can lose some of the sense of urgency naturally present at an in-person mediation which compels parties to consider compromising. It just does not quite feel the same when we are all sitting behind our computers safely ensconced in our respective offices. When the world opens up again, I suspect the vast majority of mediations will go back to being held live and in person.
Hearings. In any matter, there are likely to be multiple appearances before the judge. Some are procedural: conferences to set litigation deadlines, check in on discovery progress, or to agree on a briefing schedule. Others are substantive and can be quite lengthy: a summary judgment hearing, evidentiary hearings, or a full trial. Federal and state courts have largely moved to virtual proceedings during the pandemic. This is great for procedural hearings. It saves on time, money, and resources. While courts have done their best to replicate the courtroom in virtual proceedings, it isn’t quite the same. This was best demonstrated in my favorite internet video of all time—the cat lawyer. Virtual hearings can also make it difficult to gauge a judge’s reaction to a particular legal point and can limit an attorney’s use of demonstrative tools. Again, this is better than nothing, and certainly beats delaying cases indefinitely, but I anticipate these substantive hearings and trials will go back to “real life” as soon as it is safe to do so.
These COVID changes will have lasting repercussions on lawyers and the clients they serve. I’ve done virtual depositions, hearings, trials, and mediations now. That is not something I could have said one year ago. Technology has the potential to reduce client costs in some areas in the years to come—without sacrificing quality. In other arenas (key depositions, mediations, and substantive hearings), in-person is still best, when it can be safely done. After all, during an in-person event, an attorney doesn’t need to remind anyone that “I’m here, live…I’m not a cat.” (Usually.)
