In the past year, the world has changed in radical and previously unimaginable ways. Unsurprisingly, the practice of law has not been exempt from such changes. From informal fact-gathering as part of a lawyer’s pre-suit diligence all the way through closing arguments at trial, one would be hard-pressed to find an aspect of modern litigation practice that has not been touched, and altered, by COVID-19.
Before addressing how the shutdowns have changed the practice of law, how have they changed the business side? With regard to business development, for example, the traditions of doing lunches, grabbing drinks, and attending events have been off the table. Enterprising lawyers have responded creatively, however, by using food delivery services to convene “virtual lunches,” Zooming sommeliers for wine tastings, and taking socially distanced walks with contacts and potential clients. Curiously, some practitioners suggest the shutdowns have actually made it easier to connect with contacts in distant regions, since virtualized gatherings have been the norm. While it remains to be seen whether these development avenues will continue to be used, many attorneys express appreciation for the ability to socialize with contacts during the pandemic, without committing the same amount of time or resources necessitated by similar in-person events.
With respect to initial consults and pre-suit diligence, the practice has not changed significantly for lawyers for whom much of the evidence was already virtual in the first place. Lawyers are still speaking to potential clients and interested parties over the phone, and reviewing relevant files and emails on their computers in order to provide initial case assessments or make engagement decisions, only now usually at their homes rather than their offices. For lawyers with personal injury, construction defect, or civil rights practices, however, where much of the evidence requires physical inspection and examination, practitioners have become experienced with socially distanced protocols during on-site visits to accident scenes, hospitals, and clients’ homes, and have purchased multiple sets of face shields, N95 masks, gloves, and portable hand sanitizers. Indeed, some of the more enterprising attorneys have even invested in branded masks that remind potential clients and other contacts about law firm names.
Other than depositions, much has stayed the same, especially for business lawyers. Emails are still reviewed and produced electronically, and written discovery responses are still drafted and served as they were pre-pandemic. Depositions have changed dramatically, however. Because few courts have adopted uniform or blanket rules regarding depositions, protocols have largely been ad hoc and negotiated between attorneys. Because of the age-old principle of “what is good for the goose is good for the gander,” lawyers have been less inclined to push for unreasonable logistical arrangements. Indeed, such negotiations have usually resulted in reasonable outcomes.
Most lawyers have found the virtual deposition experience unsatisfying, as many have suffered through delays, technical glitches, and a diminished human connection between the questioner and the deponent. Attorneys bemoan their inability to establish rapport or rhythm with witnesses, which has slowed down the process and impeded the deposition’s truth-seeking function. Others have been frustrated by the presentation of exhibits about which the questioner seeks a fresh and honest reaction. Presenting attorneys have to decide either to send physical copies of such documents in advance (and take the risk that deponents might take a sneak preview) or to display those exhibits through the designated virtual platform (and lose some of the desired instantaneity as the questioner deals with displaying and scrolling through the focal points of the documents). Nevertheless, some lawyers have found virtual depositions sufficient substitutes for the real thing, especially for “person most knowledgeable” deponents and expert witnesses ,where the deposing attorneys are more focused on simply eliciting information in an expeditious manner than testing witness credibility.
While some lawyers are now frequently taking depositions virtually, many are still insisting on taking them in-person. For some clients facing substantial damages demands or particularly egregious allegations, the need to look an adverse witness in the eye has not abated. Practitioners handling such matters have used particularly large conference rooms for depositions, so that attorneys and the deponent can be socially distanced, and limit others to the court reporter and essential members of the respective teams
Alternative Dispute Resolution
While most civil courts were shut down during the beginning of the pandemic, many alternative dispute resolution companies sensed opportunity. Some anxious litigants who were uninterested in waiting for the courts to re-open were targeted by ADR platforms. Accordingly, there have been a number of virtual mediations. Mediators have become adept at toggling between virtual break-out rooms and main sessions to keep the parties together or separated, where appropriate. Some clients have enjoyed such exercises as less disruptive to their day-to-day lives than the traditional full-day, in-person mediation. Some attorneys even appreciate the virtual format, noting that the mediator’s ability to influence their clients has been blunted due to the distance between the parties. While that would seem to make mediation possibly less effective, many lawyers report that virtual mediations have actually led to more resolutions, which could however be due to the concerns of some parties about unresolved claims during the court shutdowns.
Civil trials have been few and far between since the shutdowns last March. In addition, many civil judges have been tasked with presiding over criminal proceedings to address delays in our legal system. The result has been more backlogs in civil courts than ever before.
Judges in both state and federal courts alike have been eager to experiment with trials in a virtual setup. A review of the recent authorities, however, suggests that most judges are not ordering parties to participate in a virtual trial, which remain a product of mutual agreement.
Practitioners who have participated in virtual trials emphasize the need for preparation. Presenting slides, exhibits, and even just finding the right camera angle has reportedly been a struggle. Lawyers suggest many of these challenges may be minimized through inter-office mocks where foot-faults during an opening statement are inconsequential. With regard to PowerPoint decks, graphics, and exhibits, attorneys note that simplicity is even more important in a virtual setting. While the extraneous “noise” in a particular document or slide may be avoided when it is displayed on an oversized screen in court, an image in a virtual trial will always be viewed by the finder of fact no larger than the 27-inch monitor on a personal computer.
Some lawyers express concern about internet connections, even filing briefs requesting relief when technical glitches affect the ability to hear important argument or testimony. Universally, lawyers tout the virtue of speaking more slowly in the virtual trial format, as the risk of a shaky connection is more significant for a fast-talking presenter.
Attorneys also suggest trial lawyers have less room for bravado in the virtual space. Chest-pounding, peacocking, loud tones, and interrupting witnesses or adverse parties are not as effective when the trial participants are all virtual, and the audio capabilities are limited.
To help minimize Zoom fatigue, some practitioners believe jurors appear to respond positively when one side alternates speaking roles. Vocal diversity has been an effective tool in maintaining the interests of jurors.
Lawyers who have appeared virtually in both trial and in routine civil hearings describe the importance of lighting, acoustics, and backgrounds. With regard to lighting, many lawyers use so-called “lighting rings” to ensure they are fully visible when speaking. Others report that such bright lights take a toll on the speaking attorney when they are shining in his or her eyes for hours. With respect to acoustics, many participants are unaware of echoes (or background noises, for that matter), and as a result have unknowingly been less clear when communicating during virtual court appearances. A simple dress rehearsal with colleagues may bring such issues to light for correction in advance of trial.
Backgrounds have also become a new variable for practitioners to consider. While many trial lawyers traditionally take great pains to manage their image in front of jurors, striving to look professional but not elitist, virtual appearances bring more variables into the analysis due to the location where the attorney presents his or her case. Some believe an office setting may annoy jurors who believe counsel are flouting health and safety protocols during the pandemic. Others express concerns that a nice living room or home office may be resented by working-class jurors. Whatever the strategy or posture, attorneys in virtual trials are well-advised to consider carefully their backgrounds, because something as small as a desk clock or a sports-themed paperweight seen for multiple days of trial may unintentionally become a source of distraction for the finders of fact.
Reasons for optimism are now on the horizon. When the pandemic subsides, it will be tempting to simply go “back to normal.” Lawyers and judges, however, may retain, for better or worse, some of the practices that have developed over the last year, in the belief they have helped reduce transaction costs, increase accessibility, and arguably open up the profession to more practitioners and clients. Regardless of what the future holds, it is clear that some elements of the virtual practice of law will remain a part of the profession.
About the Author
Patrick Hammon is a partner with trial law firm McManis Faulkner in San Jose, California. He may be reached at firstname.lastname@example.org.