June 18, 2020 Articles

Litigating in a Pandemic: Tools of Effective Representation

Around the country, courts are rising to meet the challenge, slowly.

By Mike Roundy

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The COVID-19 pandemic has left no corner of our lives untouched. Litigation in the midst of a pandemic has been challenging (and undoubtedly will be in the aftermath as well), but our systems have adjusted and adapted to the requirements of the new normal. Attorneys and support staff work from home. Courts conduct videoconference hearings. Electronic filing systems are coming online faster than expected. The pandemic is leaving its mark on the way we litigate, and technology is leading the way.

Evolving Court Practices

Around the country, courts are rising to meet the challenge, slowly. Because so many courts have been closed, paper filings have become the exception, with many courts accepting filings electronically, whether through a formal electronic filing system or just by being willing to accept filings by email.

Practitioners must be careful, though, as accepted practices vary by court, even among courts within the same geographic area. While email filing may be expected in one court, such as the superior court, another court covering the same area, such as the probate court, might still prefer that pleadings be filed through the mail. The state’s highest court or rulemaking body may establish what is permitted or required in some cases, but local requirements can often be narrower and more variable. Attorneys should actively engage with the local bar, attend bench/bar and CLE conferences, or call the courts directly to ensure compliance with varying requirements that have emerged to handle court business amid the disruptive closures.

Remote Depositions and Hearings

Deposition practice is also evolving. While previously deposition by remote videoconference was perhaps the exception, now that people literally cannot be in the same room, such conferences are becoming not only common but in some cases “normal.” In Massachusetts, for example, parties now have the right to notice a deposition by remote videoconference without any need to obtain court permission, a dramatic reversal from just a few years ago, when parties needed permission even to take a deposition via video.

Many court reporters are now actively promoting their capability to handle such depositions, including some with sophisticated document-handling platforms to make the process of entering exhibits smooth. Courts are expressly authorizing reporters to take the witness’s oath remotely, though these provisions are likely temporary necessities, not long-term changes to the rules. If the oath-taking requirements in your jurisdiction are not clear, practitioners would be well-advised to seek court guidance before proceeding.

Conducting the deposition itself presents new challenges as well. The attorney taking the deposition should rehearse the presentation of documents and exhibits in advance to avoid wasteful and disruptive technical difficulties on the day of the deposition. The court reporter’s document platform should enable you to share only the exhibits you want to, when you want to, and not before. Some platforms also incorporate the ability to annotate the electronic documents, to permit the witness to mark, for example, how and where a car accident occurred in an intersection or to highlight key language in a document during the deposition.

Many courts are also conducting hearings and even trials using videoconferencing technology. In several states, bench trials have been held using such methods. In Texas, one court has already held an abbreviated civil jury trial by videoconference, resulting in a nonbinding verdict.

Many of the skills needed for remote depositions will also serve practitioners well as they need, more and more, to appear before a court remotely, conduct mediation remotely, or engage in virtual arbitration. See, e.g., P. Jean Baker, Utilizing Virtual Arbitration During the Pandemic, 24:3 ABA Alternative Disp. Resol. (Spring 2020).

The Ethics of Change

As author Arthur C. Clarke noted, “any sufficiently advanced technology is indistinguishable from magic.” Profiles of the Future: An Inquiry into the Limits of the Possible (1962). And that magical quality can make learning a new technology, like videoconferencing software, seem daunting. But, as practicing attorneys, we all have an ethical obligation to ensure our own competence, including competence in using the technology that is necessary to our practice.

In most states, this duty of technological competence is written into our rules of professional responsibility. Comment 8 of ABA Model Rule 1.1 (Competence) captures the essence of this requirement: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2014) (emphasis added). To stay competent and capable of carrying out the work of our profession in the era of the coronavirus, attorneys need to enhance their skills of electronic document handling, secure videoconferencing, and making an effective remote presentation when a personal appearance before a judge, or a face-to-face meeting with a client, is not possible.

Michael Roundy is a partner at Bulkley Richardson in Springfield, Massachusetts.

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