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INSIGHT: How Covid-19 Changed the Future of Litigation

May 7, 2020, 8:01 AM

In law firms, one might guess the graduation year of attorneys based only on the technologies employed in their practices.

Lawyers graduating in the last decade may have never even seen a dictaphone in person or have experienced paper cuts from thumbing through thousands of paper documents to prepare them for production in litigation. Only recently did a small number of litigators begin using tablets instead of paper documents in depositions. Nearly all litigators firmly believed it was not possible to effectively conduct a deposition or hearing remotely.

But the Covid-19 pandemic forced change in an age-old profession, nearly overnight. As courthouses around the country continue trials and hearings, and even close completely, courts and attorneys alike have been forced to adopt new technologies at every stage of proceedings.

The Present: Evolution of Litigation

Some areas of civil litigation were already primed for a 21st century make-over. Even before the outbreak, attorneys occasionally conducted remote depositions by telephone, shipping documents in large boxes across the country to unseen witnesses. But with offices now closed and no resources or time to print and ship documents, attorneys have within a matter of weeks begun use of virtual video technology for depositions and hearings.

Several vendors already offer, and are quickly deploying and scaling, platforms that allow electronic versions of documents to be loaded in advance and published individually through the course of testimony. Screens can be shared to facilitate discussion of documents, though the ability to annotate exhibits in real-time sometimes requires creative work-arounds.

And while people around the country are already familiar with videoconferencing technology—FaceTime meet-ups and kids’ playdates held over Zoom—these technologies have seen rapid adoption in litigation as well.

With some amusing exceptions, many courts have successfully deployed remote presence technologies to hold hearings (especially on temporary restraining orders and other matters not easily delayed), examine witnesses, and hold conferences. Balancing the need to avoid Zoom bombing and interruptions to proceedings with the public’s right of access to court proceedings can be a difficult balance, especially while courts and attorneys are already grappling to deploy new technologies.

Special cases, like mediations and arbitrations, present their own challenges. These proceedings benefit from the neutral’s ability to separate the parties and discuss—frankly, if not brutally—the strengths and weaknesses of the respective arguments. But Zoom and other platforms also provide for the ability to “separate” the parties into virtual breakout rooms. The physical (and social) separation of the parties can dampen emotions as well, possibly providing an unexpected benefit driving quicker settlement.

The Future: Resumption of Trials

While remote technologies were adopted quickly in litigation before trial, how do courts handle jury trials before a vaccine is developed for Covid-19? The vast majority of district courts across the country have continued jury trials. But the Constitution mandates a right to a speedy trial. How to conduct a socially distanced jury trial remains largely unanswered.

Jury trials may present insurmountable issues, including how to effectively voir dire and empanel a jury, much less ensure that Juror No. 4 is not updating Facebook at home (or reading a New York Times article about the defendant) during cross examination. On the plus side, sequestration of juries in sensitive matters tried in districts under “stay at home” orders would prove somewhat easier.

Beyond the logistical concerns with seating a jury in the first instance, a trial will compound telepresence technology’s deficiencies. Trial litigators learn to read witnesses in person and, more importantly, the room and sculpt their examination in response to a jury’s visible reaction to the answers. Even high resolution video might conceal micro expressions, or excuse a momentary hesitation responding to questions as a lag caused by a slow connection.

New technologies, including virtual reality, might further bridge the gap, but pose their own dramatic limitations. If a video feed dampens the expressions and reactions of a witness, the technology to read, translate, and accurately reproduce a witnesses’ facial expressions in a virtual reality environment certainly do not exist yet—much less at a scale that would permit large scale, affordable deployment.

Some variation on social distancing might permit courts to resume trials, first criminal and then civil. Courts may err on the side of smaller jury panels where permitted by statute and rule, or excuse jurors with comorbidities, the elderly, or those with compromised immune systems. But whatever course courts adopt, it’s clear that resumption of jury trials will have dramatic, if not intractable, impacts on the process.

Courts around the country have bought the system time, protecting the health of judges, parties, and the public. But when operations begin to resume, as they must, new technologies will have become ingrained in the legal profession.

Travel for depositions may seem unnecessary, hearings conducted via Zoom (in a suit, of course) may be the norm. Covid-19 may not do away with dictaphones, but even attorneys fully set in their ways are sure to adopt the newest of these technologies and apply them after life resumes.

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

Author Information

James W. Beard is an IP litigation attorney and partner in Merchant & Gould’s Denver office. His practice involves all facets of intellectual property law, working to tailor creative solutions to complex disputes for clients from a diverse range of industries.

Heather J. Kliebenstein is an IP litigation attorney, partner and chair of the firm’s litigation practice group in Merchant & Gould’s Minneapolis office. With deep technology and IP experience, she is the go-to resource for companies requiring focused, strategic intellectual property insight.

The views of this article are those of the authors, and not the firm.

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