May 26, 2020 5 minutes to read ∙ 1200 words

Remote Litigation During the COVID-19 Pandemic

By Christine M. Meadows

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On January 21, 2020, in Washington State, the United States had its first confirmed COVID-19 case. By February, the United States had its first COVID-19 death. By March, numerous governors had declared states of emergency. But in several of those states, litigation continued to move forward, and lawyers and judges had to figure out how to conduct business with stay-at-home orders and social distancing—something that may be continuing indefinitely into the future.

Which cases will proceed and how varies by the type of matter, the state, and the county. This article will examine developments in Washington and in other West Coast jurisdictions.

The Oregon chief justice has postponed all civil matters and non-essential hearings until June 1. California judges who hear complex civil cases may not return to work until June 22. The Washington Supreme Court extended its suspension of civil trials through at least July 6 but allowed for civil trials conducted remotely without juries. However, criminal defendants have constitutional rights that must be addressed while still keeping people safe.

In Multnomah County, Oregon (where Portland is located), this has led to revised practices. Although most jury duties have been suspended, grand juries still meet in person, spread out in the largest space available to allow for social distancing from each other and the prosecutors. Hearings are taking place remotely, with only the clerk or sometimes the clerk and the judge in the courtroom to ensure the proceeding is properly recorded. To manage infection in the jails, the Oregon inmate population has been reduced by 40 percent through a combination of early release and pre-trial alternatives such as house arrest or bail. However, arrests are still being made, and defendants deemed a potential threat to public safety remain in jail, so criminal custody hearings are still happening. In an interview for this article, Judge Melvin Oden-Orr of the Multnomah County Circuit Court said, “For people who are in custody, we do try to conduct them in the Justice Center via video, except when it is a relief hearing and they have the right to come to court.”

Kevin Sampson is a civil litigator in Vancouver, Washington, with cases in both Oregon and Washington. Despite the postponement on civil matters, he is choosing to move forward on his cases based on the current civil trial dates, filing motions, pleadings, and interrogatories. “Even if it isn’t going to take place now, we have to do all that we can,” he said. “At a minimum, there will be a backlog of civil trials, we just don’t know.” Despite clarifications and revisions in the Washington Supreme Court orders, he is finding the response varies by county in terms of what kinds of motions or issues will move forward and if there will be a remote argument. He has successfully resolved a straightforward discovery issue with a judicial ruling rendered solely from written briefs, “but that may only be because the parties stipulated” to the process, he added. He hasn’t yet tried to get a ruling in the moment. It is still not clear if judges would be able to make rulings or resolve discovery issues during a deposition.

As for depositions, those, too, are happening remotely with social distancing and in most cases via video conference. This presents its own set of challenges. With the attorneys and parties all appearing via video separated from the court reporter, there can be a lag. The court reporter has more difficulty picking up on language or speech patterns. That leads to more errors in the transcript. For Sampson it can be frustrating to have the question he asked misquoted: “As the attorney, I can’t correct errors in the transcript.” There is little room for surprise in depositions by video conference. The process moves a bit slower. To make the depositions most efficient, parties are exchanging deposition exhibits in advance and sharing them with the court reporter. Lawyers have to consider whether an exhibit that they previously might have held back and asked about based on an answer will be included in the exhibits or not. If not, how will it be handled? Not being in the same room can also impact the tone of the process. It may also be more difficult to read how a witness will present at trial based on a video chat. The level of technological support, the speed and stability of Internet connections, the type of web cameras, and the number of participants can all impact the quality of the video and lag in the sound. The pace is slowed. On the other hand, if civil trials move to a remote process, depositions might give you more insight into what is to come for trials.

Civil arbitrations and mediations are still moving forward, and there are some additional lessons to be learned. Similar to depositions, remote arbitrations can take longer, and it may be harder to assess an individual. That can be a double-edged sword. If a party is very charismatic, that doesn’t necessarily translate through the video testimony. Similarly, for a witness who isn’t very likeable, the video hearing tends to smooth the edges. “You get less of the extremes,” Sampson finds. He likens it to the experience of watching television rather than a persuasive argument. Sampson, who also serves as a Washington state arbitrator, fears that droning is magnified and that it is too easy to get distracted. On the other hand, these are the same factors that seem to be making video mediations more effective. A mediator can spend more time with a party one-on-one, and there seems to be less posturing, allowing for a better discussion of the real issues. People are more straightforward because it is difficult to be otherwise. It is hard to storm out of a Zoom Room.

As criminal trials that have been reset come up on the docket and civil matters that have been postponed move forward later this summer, the courts will be charged with managing how those matters go forward safely. The way litigators practice will likely change, too. The day after the Oregon courts closed to most matters, Judge Oden-Orr had a manslaughter case with a defendant in custody. “I walked into the courtroom and saw about 30 people in the courtroom and had to talk to them about social distancing.” For prosecutors and defense attorneys, encouraging a show of support in the courtroom from families of the victim or defendant may have been a regular part of preparation for trial. In the COVID-19 courtroom, it poses an issue for the court trying to maintain social distance. A civil trial in King County, Washington (where Seattle is located), almost completed before the COVID-19 orders was allowed to present closing arguments, but to a socially distanced jury spread out in the room. As court dockets are packed and public health strategies continue, social distancing is something we can expect to see for the foreseeable future. This will be particularly challenging for matters where the proceedings must be open to the public. Once people are in the courtroom for a public matter, the court is not likely to ask them to leave, but it may be difficult to provide enough space in the courtroom with just the participants in the case. “Most of what [judges] do is in court,” said Judge Oden-Orr. “Our challenge is: How do we conduct open court?”

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Christine M. Meadows serves as the assistant director of labor relations, University Shared Services Enterprise (USSE), Corvallis, Oregon. She also operates a labor and employment law practice, representing employers in private industry, government, and higher education on all aspects of the employment relationship. Christine consults, teaches, and is a frequent author and speaker on labor and employment, law practice, leadership, and diversity and inclusion topics. She is the Best of ABA Sections Editor for GPSolo magazine and a member of the GPSolo Editorial Board.

Published in GPSolo eReport, Volume 9, Number 10, May 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.