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ANALYSIS: L&E Lawyers Wish for Post-Pandemic Zooming—To a Point

Nov. 24, 2021, 10:00 AM

Even after Covid-19 social distancing restrictions are lifted, labor and employment attorneys will still want to continue doing certain types of work remotely, according to results from Bloomberg Law’s 2021 Remote Practice Survey.

More than half of respondents said they want to continue—or, at the least, have the option to continue—participating remotely in status or discovery conferences (58%), uncontested hearings (57%), and client meetings (51%) after social distancing restrictions are lifted. But there is less enthusiasm for continuing other types of tasks virtually, such as mediations (33%), depositions (31%), contested hearings (20%), and trials (8%).

What might explain these differences? Status or discovery conferences, uncontested hearings, and client meetings do not involve the testimony of the plaintiff or other witnesses, so in-person attendance is less important. That’s because in L&E litigation, witness credibility is key, as cases often turn on conflicting testimony. It may be harder to gauge credibility during tasks like virtual depositions or hearings, so it’s not surprising that fewer lawyers would want to perform those types of tasks remotely post-pandemic. (The one outlier is appellate arguments; only 14% of respondents said they want to continue doing them remotely, but plaintiffs/witnesses aren’t involved).

Throughout the pandemic, survey results show, attorneys have generally struggled to read body language during remote hearings. L&E lawyers are no exception. Four out of 10 L&E attorneys said they experience difficulty interpreting body language and expressions during remote hearings.

In L&E cases, credibility matters, but it’s a lot easier to coach a witness or mask nonverbal cues behind a camera. Based on their survey responses, L&E attorneys recognize these challenges and hope to minimize them by returning to perform certain tasks in-person as soon as it’s safe to do so.

Bloomberg Law subscribers can find related content on our Surveys, Reports & Data Analysis page. Bloomberg Law subscribers can find more information on virtual communication on our In Focus: Remote Work page.

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