Written by: Amber Barlow
This article originally appeared in DRI's Raising the Bar: The newsletter of the Young Lawyers Committee
More uncertainties and questions about the scope of litigation looms now than pre-pandemic times. Litigators have been reveling how trials will take form, especially jury trials. Earlier this year when the country was initially quarantined, many litigators wondered what this meant for their cases, new suits being filed, and if 2020 would even see a trial. As 2020 winds down and with more states and cities around the country loosening pandemic restrictions, we as litigators ask ourselves, what about my trial date?
Each court has its own set of standards and protocols to conduct courtrooms during the pandemic. The practices and safety procedures for each court differ. The protocols
depend on whether the case is pending in federal or state court, the state, and even what city, as protocols widely vary. As a litigator, the first step is determining what those
guidelines and procedures are for the court your case is pending.
Working Up to Trial During a Pandemic
As any litigator knows, the grit of a case largely takes places outside of the court room. Conducting discovery during a pandemic faces many obstacles. Let’s take fact discovery. Pre-pandemic, a group of attorneys, the court reporter, and the witness would pile into a conference room for hours on hours for a fact witness deposition. During a pandemic, this is no longer the safe option. Court reporters are adapting and providing virtual deposition options. Even with social distancing guidelines and mask mandates, many depositions have become completely virtual. The concern with virtual depositions is how to monitor virtual coaching from opposing counsel. If no one is physically present with the witness, nothing prevents and/or monitors the witness from receiving virtual messages from opposing counsel or others. Parties need to establish ground rules with opposing counsel and a set of questions to explore those issues on the record if you suspect this is occurring. Professionalism and ethics are important. Do not use the pandemic as an opportunity, or any time for that matter, to be unethical.
The biggest tool litigators must possess now more than ever is professionalism. Yes, professionalism is a must and is required by the American Bar Association’s Model Rules of Professional Conduct but working a case up to trial during the pandemic will require an extra dose. So, what does that mean? Being more open to working out agreements and stipulations without court intervention. Litigators should be courteous and helpful. We are all on a learning curve. Most of the trials and case preparation during the pandemic are ones of first impression. No one has worked a case up for trial under these conditions. Be mindful. Be willing to compromise. Agree to terms that will make working the case up and trying the case easier for all parties, including the judge. Strive to settle discovery issues without court intervention. While we do not want to take advantage of the pandemic to get lax on meeting deadlines and conducting discovery, we do want to extend professional courtesies.
Thus, while virtual depositions are a practical solution for most, there are challenges. For example, sometimes counsel will insist on appearing in-person with the witness even though all others have agreed to appear virtually. Is there a pressing reason why you must appear in-person with this witness or is it just that counsel insists on doing so because he/she is able to do so? If the case has numerous parties, the alternative is to elect one counsel to appear in person with opposing counsel. But this is an example of when parties should really put professionalism first. Yes, a party may insist on appearing in-person with the witness but why. Be socially responsible and professional.
Another challenge during the pandemic is conducting fact discovery. Co-workers, bystanders, and other fact witnesses may not be as easy to find or as gracious and willing to cooperate given all the restrictions. It will likely take more time and more effort to engage in fact discovery as people are social distancing and quarantining.
Requests for records may see longer response times. As we see hospitals and medical facilities tied down with COVID treatment concerns and capacity, seeking medical records, pathology, x-rays, etc. may take much longer to process and receive. Medical record requests are not a top priority at hospitals and many of the administrative staff are likely to be working remotely.
Record requests through government agencies, such as the social security office, will likely see longer response times than pre-pandemic. People are working remotely; they are not working in offices. Having access to records and processing requests may see much longer lag times. Being able to talk to personnel with various agencies and businesses may take longer and be much more difficult to do so. As a litigator, it is important to factor these potential lag times in your preparation of the case for trial. For example, pre-pandemic, you may have received tax return records within six weeks of submitting the request with the proper authorizations, whereas pandemic times you may not receive records for nine weeks or longer. Prepare. Be more prepared more now in pandemic times.
Restrictions on travel also impacts discovery. Meeting with fact and expert witnesses will not be as easy as pre-pandemic times. Some policies remain that once you travel, you should quarantine yourself for two weeks. Evaluating what may be conducted virtually versus in-person is an important call to make. Travel is also important to consider if your case is pending in a jurisdiction you need to travel by air to attend any court hearings/trial. Know the guidelines and procedures of the court your case is pending to know if you able to attend virtually or must attend in person.
So fast forward through discovery and all pre-trial matters and you are facing a trial setting during the pandemic.
Trying a Case During a Pandemic
Some judges have tossed around the idea of conducting trials virtually rather than in-person. All parties should have access to justice, meaning access to the courts and to reasonably see their day in court; thus, virtual trials ensure that access to justice during a pandemic. Depending on the judge, you may have a virtual or in-person trial or a combination of both.
The favor of most is to have a jury assembled in-person to conduct voice dire and to be able to monitor the jury. Having jurors participate in a trial solely by virtual means would come with difficulties. For instance, how would courts be able to monitor a juror not doing independent research on the case or communicating with parties.
Nonetheless, if a jury trial is conducted in-person, it is likely several aspects of the trial will be conducted virtually: i.e., examining witnesses virtually. If a witness is elderly, immunocompromised, or would require air travel to attend an in-person trial, the witness will likely appear virtually, which requires different preparation from simply putting the witness on the stand during an in-person trial. Appearing virtually has a television like quality to it. You want to make sure your witness can connect with the jurors while appearing virtually. You also want to make you and your witness alike are comfortable and proficient using the virtual platform.
Litigators may also anticipate longer duration of trials. Given all the safety precautions, social distancing, seating a jury, and virtual aspects of trial, what may typically be a 3-day trial may become a 5-day trial. Preparation and professionalism are key. Of course, no litigator could possibly imagine showing up for trial less than prepared (this is a loaded statement for a number of reasons).
Preparation for trying a case during the pandemic requires a new set of skills and preparation tactics such as literacy of the technology and strong internet capabilities. Considering that some counsel may appear virtually as well as witness and introducing evidence electronically, knowing how to use the technology is crucial.
All aspects of pre-pandemic life have been altered, including trials. The way we prepare and litigate cases for trial have changed and are ever evolving as litigators tackle issues of first impression. Litigators or both sides of the “V” are learning and adapting to new tactics and issues, but one thing remains the need for professionalism.