In March of 2020 when the governor issued a state of emergency, the firm seamlessly sent everyone home to work remotely. We didn’t have much lead time. We loaded up letterhead, printers and postage. Prior to the order, almost everyone knew how to connect to the server and with a few more laptops we were ready to go. Our billables remained steady and our client base has held up for the most part. However, the real adjustment hit the litigation team the hardest. We have always met in person on Monday morning to coordinate schedules and deadlines. Those meetings continued on Zoom without too many hitches. Remote meetings alone, however, were not enough to hold our team together. Most of us had never worked from home and hadn’t even considered the possibilities. The three key challenges involved depositions, mediations and engaging staff.
While I had used Zoom and Microsoft Teams for American Bar Association meetings, I had never tried to introduce exhibits remotely. The closest I ever came to taking a deposition remotely was using videoconferencing equipment with one of our lawyers on-site. Since travel was suddenly no longer possible, we had to adapt very quickly. There were depositions already on the books. Thanks to the assistance of court reporters and litigators from the Law Practice Division, I learned how to introduce exhibits without the help of a third party. With a little practice, I can now use a separate email account to share my screen during depositions and enter exhibits at my own pace and in the order that makes sense in the moment. All things being equal, I would rather take a deposition remotely than ask questions through a mask and struggle to ascertain the muffled responses of a masked witness. I haven’t tried a case yet using the video of masked witnesses, and I am not sure how that is going to play.
But, all things aren’t equal. For instance, deposing a witness when opposing counsel is off screen and alone with their witness is fraught with the potential for abuse and coaching. Consider carefully whether you are representing your client’s best interests when you allow this scenario to occur. Shouldn’t at least one person from your side be present in the room with the witness?
What about the court reporter? Increasingly, court reporters want to take the deposition from their own living room. Consider whether you are comfortable with that, and make sure you retain a reporter who will appear if that is what you need. If you want the court reporter present, consider whether to schedule the court reporter with the witness or the questioner. Personally, I am almost to the place where I have to insist that a court reporter be present for the deposition. Whatever you decide, understand that we are unlikely to ever go back to a time when the litigator traveled to attend every deposition in a case. I predict that we are settling into a new reality in which most depositions are taken remotely, with only key witnesses deposed in person by the litigator.
Resolving cases remotely has been almost seamless. I have mediated several cases since March 2020, and the efficacy of the process is unchanged. In fact, I find it easier to attend mediations remotely. First, I can communicate more readily with the mediator. I don’t have to excuse myself for lawyer conferences and then allay fears that I am working against the client in the other room. Second, the entire file is at my fingertips, and I don’t have to consider what to carry to the mediation center and what to leave behind. Finally, I am less exhausted because I don’t have to be “on” for 8 hours entertaining a client while the mediator is in the other room. The downside, of course, is that there is no way to replace that valuable one-on-one time with the client. It has been during long, hard days of mediation that I have really understood who my client is and what is important to them. Regardless of how I feel about the remote nature of mediation, there is no question in my mind that the process has been forever changed. I doubt insurance carriers will ever send their claims managers across the country to attend mediations in person again. In fact, I have already seen a return to the use of telephone calls alone to resolve cases.
3. Engaging Staff
The final challenge to running a litigation team is staying focused and engaged. Because we no longer go to lunch together or bounce ideas off each other in the hallway, we have to replace that valuable exchange with deliberate scheduled conferences. Every day I set aside time to call my support staff to discuss deadlines, goals for the day and to check in. Instead of automatically meeting once a day with the lawyers on the team, we have to check in frequently with each other. This communication is essential and must occur on a scheduled rather than ad-hoc basis. The temptation to fire off emails without thoughtful engagement is greatly enhanced by the remote workplace. Communicate regularly with your team. Remember to provide positive feedback when appropriate. Be prepared to spend more time on conferences than ever before.