The legal community’s forced apprenticeship with remote technology during the COVID-19 pandemic changed, almost overnight, how litigation is conducted in the United States. From mundane interactions like client meetings to courtroom hearings with constitutional significance like arraignments and trials, courts and lawyers have replaced in-person processes with technology-enabled, socially distant substitutes wherever feasible and lawful.
To what extent will any of these changes be permanent? What is gained, and what is lost, with remote technology? What will litigation look like post-COVID-19, when the choice between remote and in-person is once again a voluntary one?
Several litigation experts offered their views on these topics during the National Institute for Trial Advocacy’s recent online seminar on COVID-19 and the future of jury trials. Among their assessments:
• Courts and clients, mindful of efficiencies and cost savings, will exert pressure on lawyers for continued use of remote technologies.
• In-person proceedings will (or should) continue to play a key role in the justice system, but many non-adversarial hearings and pretrial discovery management will take place online.
Civil Takes Backseat to the Criminal Side
The interplay between COVID-19 social distancing measures and remote technology is having a mixed effect on the criminal justice system, where speedy trials and in-person proceedings are constitutionally required. There is a backlog of criminal cases awaiting trial right now.
However, the backlog is less acute than it might otherwise be because federal prosecutors are struggling to impanel the grand juries necessary to indict alleged offenders. Federal district courts are just now getting their grand juries up and running again.
Hon. Luis Felipe Restrepo, U.S. Court of Appeals for the Third Circuit, remarked that it has been a tall order to convince people to come to a federal courthouse for jury duty and that it has been expensive to create a safe environment for courthouse visitors. Restrepo said that, to his knowledge, there have been few criminal jury trials in the Third Circuit and that that was not likely to change soon.
Assuming that a COVID-19 vaccine becomes widely available in the spring and courts open up to in-person business as usual, civil trials will take a backseat to criminal cases.
“You’re going to see a delay in getting to civil trials,” Judge Restrepo said, “because when we are in a position to bring jurors into the courthouse, they’re going to be funneled into the criminal proceedings, which have constitutional issues that don’t really attach to the civil cases.”
The anticipated backlog in civil cases is being partially offset, however, by the courts’ greater ability to conduct civil hearings remotely and increased settlements in those types of cases.
Restrepo related that he had heard from trial court colleagues that remote technology has greatly aided civil litigation during COVID-19.
“Everybody’s available,” he said. “It’s difficult to not be available when you can be ‘Zoomed’ into a settlement conference.” Nonjury civil trials are also taking place remotely, another factor that’s minimizing the civil litigation backlog. “I think the civil docket will be in a pretty good place,” Restrepo said.
Remote’s Impact on Civil Procedure
Prof. Scott Dodson, University of California Hastings College of Law, San Francisco, predicted that the dramatic impact of remote technology on civil litigation will persist after the pandemic has passed.
Dodson said that the savings of time and money realized by remote technology during the pandemic — whether for short trips to the courthouse or international travel — are too compelling to set aside.
“For low-value proceedings on the civil side, I think you’ll see a lot of use of remote technology in place of in-person meetings,” Dodson said. “The cost savings and the time savings are just too great to pass up.”
The proceedings that Dodson believes will routinely be facilitated by remote technology include:
- Client meetings with established clients
- Witness interviews
- Depositions with relatively low strategic significance
- Pretrial discovery conferences and hearings
- Status conferences
- Nondispositive motion hearings
Dodson said that document-intensive hearings are still difficult to manage with existing technology. “I think that technology has some way to catch up,” he said.
Dodson predicted that remote technologies would soon have an impact on multidistrict litigation and other areas of civil procedure where the convenience of the parties and the burden of travel play roles in resolving procedural issues.
Plaintiffs in multidistrict litigation can often feel disconnected from litigation that is being managed in a far-off jurisdiction. “If you were able to use remote technology to conference in from time to time with the planet steering committee, or with your attorneys, that could really enhance your level of participation in your own case,” Dodson said.
With remote technology, lawyers would be able to watch depositions that impacted their clients, generally making MDL proceedings more “user friendly” for lawyers across the country, he said.
Dodson predicted that remote technologies would have a similar, positive effect on class action litigation, allowing class members to enjoy greater participation in their cases.
The resolution of disputes over personal jurisdiction and venue transfers might also be impacted by the manner in which remote technologies reduce the burden of participating in litigation outside a party’s locality, Dodson added.
Shortcomings of Remote Technology
Remote technology is not always an adequate substitute for an in-person proceeding. In addition to constitutional protections, such as the right to confront witnesses and the right to a jury trial,that would be diminished by remote hearings, there are other ways in which personal contact is important in the criminal justice system.
In criminal cases, meeting a new client in person — whether in the office or in a detention setting — is a critical opportunity to build the attorney-client relationship. Some criminal defense attorneys worry that justice will not be served, or respected by the community, in virtual proceedings that lack person-to-person contact.
“It makes the entire criminal process potentially more antiseptic than it should be,” said William Fick, a trial attorney with Rick & Marx in Boston. “As lawyers, we all appreciate the efficiency. But I think we want to be very careful not to fall into patterns of practice where the remote technology becomes a shortcut that cuts the human element out of a criminal case.”
Fick said that something valuable is lost when an attorney examines a witness who is not physically present in the same room, observable by everyone.
“I think you certainly you’ll lose something by not having in-person contact,” Fick said, though he admitted he wasn’t entirely sure what that “something” is.
Some aspects of an attorney’s interaction with a witness during an examination — for example, facial expressions and body language — are lost in a virtual setting, Fick said. “Now, what difference does it make? Can you actually measure that? I don’t know.”
The problem is less acute during a remote deposition, he added, where the attorney has an extended opportunity to circle back and go over important matters repeatedly. But when examining a fact witness in an evidentiary hearing that will be viewed by a court or jury, a “one-shot” attempt to achieve an evidentiary goal, then in that situation, Fick said, he would want to question the witness in person.
Dodson agreed. “If a lawyer thinks that he will be facing an intractable witness, that lawyer is going to want that person deposed in person.”
Lawyers Will Work It Out
The panelists all appeared to agree that remote technologies have been a great tool for moving litigation of all types forward during the COVID-19 pandemic.
Post-pandemic, they believed that judges and clients will put enormous pressure on lawyers to continue to make wide use of remote technology.
In the federal system, Rule 1 of the Federal Rules of Civil Procedure directs the courts to interpret all court rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” To the extent that a trial court wants to insist that remote technology be used in a particular case, Rule 1 will provide support for that decision.
Additionally, the panelists noted, clients have now experienced the cost savings and efficiencies ushered in by remote technologies, so lawyers may have to justify the additional cost of travel for in-person proceedings.
“The cost savings are so powerful that the clients are going to demand those kinds of savings whenever they’re plausible,” Dodson said.
The challenge for the profession, they said, is to think creatively about how to solve legal problems: using remote technology where appropriate while preserving the essential aspects of what was formerly a justice system dominated by in-person proceedings.
“It’s going to take some time to find that balance, but I think we’re moving in the right direction,” Dodson said.