Pretrial
Meet-and-confer discussions. During the pandemic, discussions regarding deposition designations, exhibits, witnesses, and numerous other topics were done remotely. The practice of law has increasingly shifted from in-person meetings to phone calls and videoconferencing, so this process is not too far from the ordinary.
There is, however, still a benefit to sitting down in a room and working through issues. For example, in one trial, there were a few issues discussed for weeks leading up to trial that were not resolved. We sat in a room with opposing counsel one night during trial and were able to resolve these disputes. The fact that the judge would ask about these issues the following morning undoubtedly pushed the parties to reach a resolution. It is, however, undeniable that face-to-face communications are beneficial in certain circumstances.
Despite the benefits of in-person meetings, we think the use of phone calls and videoconferencing for pretrial discussions is here to stay. This is a practice that was already widely accepted, and the pandemic has further emphasized the ability to accomplish meaningful work from a variety of locations—and where everyone is not physically in the same room.
VERDICT: Here to stay
Remote hearings. Appearing remotely at hearings is also nothing new. Prior to the pandemic, attorneys frequently called in to a hearing or used videoconferencing technology. But attorneys often appear in person for significant hearings, depositions, and other events. Although perhaps not expressly stated, appearing remotely could be viewed negatively as a hearing’s importance increases. But during the pandemic, attorneys were required to attend most (if not all) pretrial hearings remotely, making it the norm instead of the exception.
We continued to appear in person for significant events—such as summary judgment hearings, pretrial conferences, and arguments on post-trial motions. Although videoconferencing technology continues to improve and provide a viable alternative in certain instances, it cannot replicate everything that takes place during an in-person meeting. It is difficult—if not impossible—to appear remotely and build the same level of rapport and chemistry with key decision makers, gauge the tension or lack thereof with certain topics, and effectively read body language and signals.
We do, however, believe that appearing remotely is a viable alternative for individuals taking a lesser role in a significant hearing, routine appearances (such as many status conferences), and other events where the stakes are not as high. The pandemic forced both attorneys and courts to embrace remote technology, which further demonstrated its value. We therefore think remote appearances will continue to grow in certain instances, but the value of appearing in person for significant events has not been replaced.
VERDICT: Here to stay, in part
Vetting the jury. The pandemic also emphasized the importance of vetting potential jurors before they enter the courtroom. If we could identify ahead of time certain potential jurors who would be dismissed, there was no reason for them to appear in court. This was accomplished with detailed questionnaires covering topics ranging from their COVID-19 exposures to reasons someone may be at a high risk for a severe adverse reaction and life experiences related to the trial’s subject matter.
This process also allowed the parties to conduct a more detailed and targeted voir dire, save time on certain issues, and, ideally, assemble the best jury. As many courts explain to potential jurors, there are some individuals who may not make the best juror for a case’s specific subject matter. Detailed pretrial questionnaires provide more information for the court and attorneys to identify these individuals in a time-efficient manner. Although it may require more work on the front end, this is a valuable process that should continue to be used.
VERDICT: Here to stay
Trial
Remote jury trials. Some courts conducted entirely virtual jury trials during the pandemic. These trials were done to move matters along in jurisdictions where courts believed this was the best or only option. Although virtual trials allowed parties to receive a verdict—accomplishing their purpose—multiple concerns have been discussed with these trials.
In addition to the many benefits of in-person communications discussed above, jurors often appeared for these trials from the comfort of their homes. As anyone who has completed a trial is aware, the duration of the intense proceedings often becomes tiresome, and it may be difficult for jurors and others to stay focused. In a courtroom, jurors are prohibited from using their phones or other personal electronic devices during the proceedings, and this environment at least promotes focused attention on the subject matter.
As many of us are aware from working remotely, attempting to give our complete attention to a single matter for long periods of time at home is almost impossible. Children, pets, electronic devices, and other distractions are not only present but sometimes unavoidable. Three of the authors for this article have worked remotely for over a year and share their homes with young children. We therefore recognize that despite an individual’s best efforts and intentions, working from home inherently entails distractions that are not present in a courtroom.
We believe there is also significant value in face-to-face communications when the stakes are high. There are some situations—such as trial—where looking someone in the eye, reading that person’s body language, and judging that person’s credibility are very important and cannot be replaced. Articles could be (and have been) written on the viability of completely remote jury trials. But at a high level, we believe the risk of distractions and the benefits of in-person communications will outweigh the advantages provided by remote jury trials once the pandemic is over.
VERDICT: No longer used after the pandemic
Remote witnesses. Remote appearances at trials obviously occurred before the pandemic. But important witnesses traditionally appear at trial in person, and for certain individuals, appearing remotely may carry a stigma. The pandemic, however, required more expert and fact witnesses to appear remotely due to various laws and regulations affecting travel and personal health concerns. Moreover, even when a witness appeared in person, the use of videoconferencing for witness preparation greatly increased.
Although the pandemic further emphasized that witnesses can appear remotely without technology issues, that does not mean they should. On the positive side, we had a great experience with remote witness preparation. Further, certain witnesses may be just as effective when testifying remotely. For example, an accounting expert merely analyzing numbers or an adult child providing limited information may not need to appear in person, and the pandemic likely lessened any stigma attached to not appearing live for such testimony. But there are limits to remote testimony’s effectiveness.
We saw certain witnesses struggle to relate with a jury or fully educate jurors on the subject matter. For example, remote witnesses may be limited in their ability to visually demonstrate certain information important to their testimony. Further, the impact of visual and tangible exhibits may be lost through technology.
Emotional testimony may also have a lessened impact. Although many people think this topic applies exclusively to plaintiffs, it is equally applicable to defendants. Cases can be won and lost by company witnesses and their credibility. Indeed, an individual’s enthusiasm, passion, and pride in his or her career and company could profoundly affect a jury and tip the scales. Thus, although the pandemic may increase the use of remote technology for some witnesses (a trend existing before the pandemic), there are others who should continue appearing in person.
VERDICT: No longer used, in part, after the pandemic
Attorneys in the courtroom. The pandemic affected attorneys’ presence at trial in several respects. Some courts limited the number of attorneys present in a courtroom or at counsel’s table, which resulted in some attorneys watching a video feed or listening to the proceedings from another room. The attorneys permitted in the courtroom were required to wear masks, and their movement was limited to ensure proper social distancing.
Although these restrictions were appropriate at the time of these trials, we believe they will provide limited to no benefit after the pandemic and could have a negative impact. Specifically, restricting the number of lawyers allowed in the courtroom or at counsel’s table may inconvenience counsel, cause unnecessary delays, and negatively affect younger attorneys gaining trial experience. We therefore believe these restrictions are not here to stay.
VERDICT: No longer used after the pandemic
Sidebars. Courts used both headsets with microphones and traditional sidebars with masks and plexiglass between counsel and the court. Headsets with microphones are another example of technology already existing in courtrooms that the pandemic forced everyone to use. The biggest takeaway was that the use of white noise and headsets with microphones is an effective option for sidebars, even when discussing complex issues. White noise effectively prevented jurors from hearing conversations, and counsel were able to argue sidebars from their respective tables. This not only ensured social distancing but also resulted in a smoother process with fewer delays for movement around the courtroom. To the extent the technology is available, we think the use of headsets with microphones will continue to increase after the pandemic.
Another court did not have headsets with microphones, so attorneys wore their masks at sidebar and were separated from the judge by plexiglass. The reality is this was the best option at the time for the court. But this process created several issues. As we all know from daily conversations, it can be hard to understand what someone is saying while wearing a mask. The masks, combined with plexiglass, white noise, and attorneys attempting to talk quietly, often made it difficult to understand what was being said. Although this process was necessary during the pandemic, we do not think it is here to stay.
VERDICT: Here to stay, in part
More screens for jurors. The pandemic required courts to take full advantage of their technology. Instead of physically handing exhibits to jurors, courts used both smaller screens for each individual juror and larger screens projecting exhibits to both jurors and other individuals in the courtroom. This process was seamless and provided a convenient and, most importantly, visible product for everyone needing to see documents.
Although many courtrooms already had a variety of viewing options before the pandemic, many courts and attorneys preferred the traditional method of handing paper copies of the documents. The pandemic, however, forced these individuals to use updated technology. Our experience was that, in addition to providing an effective method to review documents and information, this process also reduced the need to waste large volumes of paper, was more convenient, and reduced clutter in the courtroom. Although there certainly may be exceptions with certain types of evidence, the use of screens was effective and should be here to stay.
VERDICT: Here to stay
Bigger jury boxes and use of alternative space. Everyone reading this article is certainly aware of social distancing requirements, but it was interesting to watch courts effectively manage their limited space to ensure that jurors, court personnel, and counsel were appropriately distanced from each other. Among other things, this resulted in larger jury boxes. Courts used the jury box and gallery for voir dire, and one of the jury boxes ran into the gallery.
Larger jury boxes did not cause problems. Technology eliminated the burden of passing documents to each juror, and the additional space appeared to create a more comfortable environment. Given the significant amount of time jurors spend in their seats, having the ability to stretch and take up more space is a luxury that may stick. Of course, the viability of spreading out will depend on a courtroom’s space, but this is something that should at least be considered after the pandemic.
VERDICT: Here to stay
Wearing masks. During our trials, everyone wore masks in the courthouse. But there were exceptions. Judges often took off their masks when they were appropriately distanced from other people in the courtroom. Further, attorneys were permitted to take their masks off while at the podium during witness examinations and oral argument. At that time, wearing masks was a minor inconvenience but obviously appropriate given the circumstances.
As mask recommendations change based on vaccinations and other factors, it will be interesting to monitor how courthouses react. For example, should masks and social distancing be required for unvaccinated individuals but not for people who received the vaccine? If so, will vaccinated individuals be required to provide proof of vaccination before entering the courthouse without a mask? There are rumors that certain airlines may continue requiring passengers to wear masks—will courthouses follow this protocol?
These questions, which affect all gatherings, will likely be answered in the coming months. Although it is interesting to speculate, a famous quote seems appropriate here: To know what you know and what you do not know, that is true knowledge. That being said, we will leave this verdict to the healthcare professionals.
VERDICT: Listen to the healthcare professionals
As we continue working our way out of the pandemic, it will be interesting to monitor the changes that become normal both inside and outside the courtroom. These are potential changes we identified based on our trials during the pandemic. Disagree? Feel free to call us on appeal.
