On Litigation

by Caroline McIntyre

Caroline McIntyre

The COVID-19 pandemic has caused a seismic shift in the way attorneys litigate cases.  Litigators are working remotely from their homes and attending meetings and court appearances by phone and videoconference.   As offices and courtrooms begin to slowly open their doors again, there is a sense that the landscape for litigators may permanently have been altered as companies reassess the way they do business while also considering the possibility of another surge of the virus.  Litigators need to be flexible with these changes and learn how to effectively navigate the challenges of remote litigation.  This column unmasks best practices for remote civil litigation.

  • Home work space

By now, everyone has carved out some type of remote work area at home.  Preferably, this is a dedicated space for work that has a strong Internet connection and good lighting with a door that can be closed for confidential calls and videoconferences.  Get whatever equipment you need to work efficiently including a monitor, keyboard, printer, mouse, and headphones, as well as necessary software.  Keep the work area stocked with supplies such as printer paper and toner.  Consider maintaining defined work hours at home similar to the hours you kept in the office – this will help with the transition back to the office.   

  • Technology

Make sure your computer and other devices have a working camera, microphone, and speaker, as well as appropriate encryption to secure confidentiality.  Are your phone lines clear and your Internet connection dependable with sufficient bandwidth?  If not, contact your provider to see if improvements are possible.  Coordinate closely with any IT specialist your firm has.  It is best to use hardwired Internet to ensure the connection will not be dropped.  Make sure the videoconference platform used is as secure as possible, including using passwords to join the videoconference.

  • Local Rules

Courts are taking different approaches regarding COVID-19 issues.  Check the local rules for courts where you have cases to ensure you have the latest guidance regarding how that particular court handles emergency hearings, remote depositions, conferences, law and motion, and trials.  Most courts are permitting in-person emergency hearings with appropriate safeguards.  Many courts are encouraging remote depositions, and are conducting status conferences and hearing motions via telephone or videoconference.  Local rules may provide guidance on technical requirements for joining conferences remotely.

  • Taking Depositions

As COVID-19 issues continue to impact in-person meetings, remote depositions may be the new normal at least for now.  The notice of deposition should indicate that the deposition is being taken remotely.  If a video recording of the deposition is desired, the notice should also state that the deposition will be videotaped.  Advance planning is key, including selecting a secure platform for the deposition and becoming familiar with that platform.  Also, counsel should coordinate with opposing counsel regarding handling exhibits, including deciding whether to send hard copies of exhibits to the court reporter to upload during the deposition (provided the court reporting service used offers this service), or to send hard copies to the court reporter and counsel in advance of the deposition with passwords or a sealed envelope which is only to be unsealed during the deposition.  If remote depositions are new to you, consider having a practice session before the deposition to get comfortable with the technology.

  • Defending Depositions

Make sure the witness has appropriate equipment to participate in the deposition, including a computer and webcam, and clear instructions to access the platform.  Remind the witness that the room the witness uses for the remote deposition should be quiet and free from outside noise and distractions (such as ringing phones and wandering pets).  Discuss with the witness in advance how best to present and engage through the videoconference and consider a practice session with the witness.  Remind the witness that even though the deposition is remote, it maintains the same formality as an in-person deposition.  Advise the witness how you will have secure and confidential communications during the breaks, either through the platform or a separate call. 

  • Hearings

Many courts are permitting hearings to take place telephonically or through videoconference.  Counsel should follow the same decorum for these remote hearings as they would if they were physically present in court.   This includes professional dress for hearings and etiquette.  Backgrounds for videoconference hearings should be professional.  If in doubt, use a plain background.  For the videoconference, attorneys should select an area in the remote location that is quiet with no outside noise or distractions.  Counsel should keep the microphone on mute when they are not speaking and remember to remove the mute function when they are speaking. 

  • Mediations

Mediations can effectively take place through videoconference with the mediator using virtual breakout rooms to communicate with the parties and their counsel.  Documents can also be shared during the mediation with most platforms.  Advance coordination is important, including discussing with clients how private communications will be relayed during the mediation.  A remote mediation can be more efficient than in-person mediation, as travel time is eliminated, and scheduling may be easier for the participants. 

  • Trials

While civil jury trials will be slower to return in light of the unique issues with social distancing jurors, some courts are permitting remote bench trials through videoconference subject to the rules and protocol posted on the courts’ websites.  Remote bench trials present special challenges so advance planning and coordination is key.  Make sure witnesses have the requisite information to access the trial remotely and be admitted by the Court through a virtual waiting room.  Exhibits will still be exchanged in advance consistent with the Court’s standing order.  Court approved exhibits can be shown to counsel and the parties through screen sharing.  Counsel should meet and confer in advance and discuss with the Court how any tangible exhibits will be shown.  It will be more difficult to assess credibility remotely, so attorneys should have sufficient practice sessions with their witnesses to ensure they are presenting well through videoconference.  Examining attorneys should speak slowly and deliberately, taking care not to interrupt the witness.  It also will be more difficult to control a witness remotely on cross-examination so it is critical to have short, pointed questions seeking key admissions.  Virtual breakout rooms will be available when the Court deems appropriate, including for side-bars and certain private communications.       

  • Final thoughts

While the COVID-19 pandemic continues, attorneys will need to become proficient in remote civil litigation.  Even after the pandemic subsides and there is a vaccine, remote litigation may be a viable option to more efficiently handle certain aspects of civil litigation.  Learning best practices for remote litigation now will help attorneys represent their clients effectively for years to come.

Caroline McIntyre is Managing Partner with Bergeson, LLP.  She has extensive experience with complex business litigation, with a focus on securities litigation.