In a July 2013 article that seems as if it could have been written yesterday, District of Columbia Superior Court Judge Herbert B. Dixon, Jr., predicted that virtual lawyering would become pervasive within the legal profession once lawyers familiarized themselves with the technology.
Not only would lawyers embrace virtual litigation practices on their own initiative, he predicted, but clients would also push the profession towards greater use of technology. Sophisticated clients would no longer tolerate the expense of in-person hearings nor would they accept the data security risks posed by technologically incompetent lawyers, Judge Dixon wrote in “Technology and the Courts: A Futurist View.”
Unfortunately, Judge Dixon was wrong about the motivation for the legal profession’s eventual adoption of online technologies. He didn’t see the COVID-19 pandemic coming. He assumed lawyers would find the benefits of high-definition video displays too compelling to resist:
[B]ecause of the impressive nature of high-definition video displays and the remote party (witness, lawyer, or judge) appearing larger than life on the receiving end, the legal profession will abandon its reservations about remote video participation in a court proceeding. It will not be unusual for an attorney to attend scheduled appearances in several courts across the country in a single day.
Regardless of the reason why the profession came to embrace virtual lawyering, there can be no doubt that the age of digital lawyering is now upon us. One area where virtual hearings and electronic data technologies seem to hold the most promise is complex litigation.
Remote Solutions for Complex Litigation
“Complex cases” tend to be complicated legal proceedings involving dozens of parties on each side, many with their own counsel, with a lot of money at stake. Environmental damage lawsuits, antitrust claims, products liability cases, and class actions on any number of topics are all examples of complex litigation. A complex case features some or all of these attributes:
- Large numbers of separately represented plaintiffs and defendants
- Extensive pretrial motion practice
- Challenging and/or novel legal issues
- Large amounts of documentary evidence
- Large numbers of witnesses
- Parties, witnesses, and evidence located in multiple jurisdictions across the country or globe
- Coordination with other cases in multiple state and federal courts
All of these complex litigation challenges can be eased, if not solved, with available virtual technologies. This fact becomes immediately apparent if we stop framing the question as “Should this hearing/deposition/meeting be conducted virtually?” and ask instead “How can technology be applied to this aspect of complex litigation practice?”
Numerous separately represented parties
The amount of calendar coordination rises steeply when multiple parties each have their own attorneys and law firms. With virtual lawyering technology, the time window required for each deposition or hearing or status conference shrinks considerably. When travel is unnecessary for most of the relevant participants, scheduling becomes easier and cases can progress more rapidly.
Extensive motion practice
The amount of money at stake in a complex case exerts pressure on all parties to engage in painstaking pretrial discovery and to bring pretrial motions to bring the case to an early disposition or settlement. Electronic filing, remote depositions, and virtual hearings streamline the pretrial process and permit more parties to participate, at less cost, than earlier in-person, paper-based procedures.
Voluminous documentary evidence
Court-ordered electronic document depositories can be used to efficiently handle the voluminous quantity of documentary evidence in complex cases.
Behind the scenes, lawyers and their clients can leverage client extranets, document management systems, and litigation management software to efficiently process and present at motion hearings and trial formerly overwhelming numbers of documents and images.
Wide geographic distribution of parties and witnesses
It’s frequently impossible, and inefficient, for lawyers to travel to every deposition that will be conducted in a complex case.
Novel legal issues
Due to the technical subject matter at issue in a typical complex case, expert witnesses are a critical component of a winning litigation strategy. Remote deposition and remote hearing technologies allow lawyers to bring expert testimony to bear on their client’s case regardless of the expert’s geographic location.
Related litigation in multiple jurisdictions
Because complex litigation over the same operative set of facts — e.g., a product liability claim or investor class action — can give rise to lawsuits wherever each alleged victim resides, lawyers representing parties in these cases are often obliged to appear in courthouses across the country. With virtual hearings, however, a two-hour hearing will occupy just two hours on each lawyer’s schedule with none of the travel time ordinarily associated with litigating a sprawling, complex case.
“Adapting to a New Way of Practicing Law”
Even before the COVID-19 pandemic, courts recognized that technology held the solution to many challenges presented by complex cases.
The Manual for Complex Litigation, Fourth Edition (Federal Judicial Center, 2004) recognized more than a decade ago the efficiency of electronic evidence presentation and virtual hearing technologies — as well as a corresponding burden on lawyers to become more efficient themselves. “Trials in a technologically advanced courtroom usually move faster and take less time than a traditional trial. … Judges may more confidently impose time limits on lawyers because technology assists in making presentations move along more quickly and predictably,” the manual states.
On the subject of hearings, the manual encourages judges to consider videoconferencing when scheduling hearings: “Videoconferencing gives judges the flexibility to conduct pre-trial hearings from remote locations or to schedule the testimony of witnesses at remote locations to fit the trial schedule.”
More recently, the legal profession’s plunge into virtual lawyering in the wake of pandemic-driven social distancing directives has created a judiciary with little patience for arguments that in-person proceedings are necessary. Although the initial response to the inability to hold in-person hearings and depositions was to grant continuances, the judiciary soon adopted what is now the prevailing approach to meeting COVID-19 challenges: find a way to use technology to move cases ahead.
Here is what one magistrate judge recently said about the need for the legal profession to embrace virtual lawyering:
Attorneys and litigants all over the country are adapting to a new way of practicing law, including conducting depositions and deposition preparation remotely. … There are numerous resources and training opportunities available throughout the legal community to assist Sodexo’s counsel in the operation and utilization of the new technology.
Grano v. Sodexho Management Inc., No. 18-0818 (S.D. Calif., April 24, 2020)
In SAPS LLCS v. EZ Care Clinic Inc., No. 19-11229 (E.D. La., April 21, 2020), a magistrate judge denied a motion to prevent the defendant from taking a remote deposition because the oath could not be administered in person. The magistrate judge found that the rules didn’t forbid remote administration of the oath, adding: “The hardships presented by the pandemic must inspire a higher level of cooperation, courtesy, and creative problem solving between counsel than that demonstrated here.”
In Ogilvie v. Thrifty Payless Inc., No. 18-0718 (W.D. Wash., May 12, 2020), the district judge denied a motion to extend time to conduct a deposition in order for it to be conducted in-person at some future date, noting that a mere preference for in-person proceedings did not amount to good cause for an extension of time.
Although these rulings were issued in the context of the COVD-19 pandemic, nothing in the courts’ reasoning depends on the exigencies caused by the current crisis. It would be difficult to come to any conclusion other than that these judges — and likely most of the judiciary — will have little patience going forward for bare assertions that in-person hearings are somehow necessary for the civil justice system to properly function.
Whatever reasons formerly held back wider use of virtual courtrooms and videoconferencing in complex cases, they appear to have evaporated. In fact, it may become untenable in many courtrooms to proceed any other way.