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INSIGHT: Virtual Litigation’s Time Has Come

April 7, 2020, 8:00 AM

Many companies and industries are implementing significant changes to continue working during the Covid-19 outbreak, but one industry segment in particular is grinding to a halt: civil litigation in the U.S.

Jurisdictions around the country have essentially suspended civil litigation, with closed courthouses and frozen statutes of limitations. The American Bar Association recently held a webinar in which three judges from various jurisdictions urged the 300 lawyers in attendance to “be patient and understanding.”

In the meanwhile, many of the more than 100,000 civil litigators in the U.S. now have their ongoing cases encased in amber, or soon will, not to mention the countless litigants whose cases will not move forward in the interim.

Firms Experiencing Pay Cuts, Layoffs

This is to say nothing of the paralegals, staff, and other litigation-adjacent professionals – expert witnesses, stenographers, translators, managed discovery professionals, and others – who also suddenly find their livelihoods on pause, with no end in sight. This has already translated to pay cuts and layoffs at firms including Cadwalader and Arent Fox, among others, and reduced partner distributions at firms like Reed Smith. This trend has been accelerating over the past few days, and does not show signs of slowing.

Covid-19 presents an unprecedented challenge to the nation and the legal industry, and it calls for a response unlike anything the profession has ever undertaken. The time has come to enable America’s court system and the practitioners who depend on it to move forward and get back to work, safely and sustainably.

That is why the ABA, in concert with state bar committees and other relevant decision makers (including representatives of impacted law firms of various size), must immediately convene emergency sessions and emerge with a set of model guidelines to allow for litigation to be conducted remotely, effective on a rolling basis as soon as it is able to be implemented.

It is imperative that virtual litigation take effect not only on the civil side, but also in concert with criminal practice – in fact, moving the latter to the virtual realm should take precedence, as it involves potential deprivation of liberty.

New York Takes the Lead

In this respect, I commend the state of New York, which recently began conducting criminal and family court matters remotely. This expeditious and bold action demonstrates that the technology exists, and that where we have the will to make change happen, there is a way. That said, New York has also simultaneously frozen civil cases. There is no reason New York—and other jurisdictions—cannot move forward on both the civil and the criminal fronts simultaneously.

It is important to acknowledge that the ABA has formed the Task Force on Legal Needs Arising Out of the 2020 Pandemic and, in response to direct inquiry, let me know that they are studying this situation. Some individual courts and jurisdictions have moved operations piecemeal to the online realm. A few, including the Delaware Chancery Court, were already moving in this direction before the new coronavirus outbreak and have accelerated that transition in recent days. These measures are a start, but not nearly enough.

This is the time for swift and bold action. We know as a profession what must be done. Justice delayed is justice denied, for criminal and civil litigants alike, not to mention the incredible loss of jobs and revenue that would come with shuttering the American civil court system for an undefined period.

Law—and litigation specifically—has spent too long living in the past and resistant to moving forward. A continuation of the status quo here, however, would be a disaster—for lawyers and law firms, for litigants, for law-dependent businesses, and for the cause of justice. Covid-19 has come upon us when, unlike any time in history, we have the technology necessary to implement much-needed change.

Moving an industry that has existed offline for literally centuries to a virtual framework quickly will certainly come with impediments. Rural areas without widespread broadband, for example, will absolutely face difficulties. The Delaware Chancery Court blueprint is a good starting point, but its model will not identically translate to other jurisdictions. It will not be easy. At their core, however, lawyers are critical thinkers and problem solvers. Attorneys helped to write the founding documents of this nation and create it. The obstacles can be overcome.

The alternative—doing nothing—is no alternative at all.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

David Solomon is global general manager with GLG Law, a platform that connects lawyers with expert witnesses in complex fields. He was previously with Axiom Global and Bloomberg LLP.

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