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Lindsey R. Freihoff
COVID-19’s Impact on Litigation; Virtual Litigation Long-Haulers
By Lindsey R. Freihoff
While COVID-19 continues to evolve, so does its impact on litigation. The viral effect on law firms, clients, courtroom operations and procedure has been no exception and is likely to continue.
According to an article by Chandler Ford published by the National Law Review, “the major changes in law firms nationwide include: law office management of remote workers, new types of attorney-client relationships, work-life balance for all firm employees and changes in billables and firm expenses.”33 Remote work has transformed to a critical incentive with attorneys and staff having more leverage than ever before and law firms having to be more creative and aggressive to retain and attract talent.34 As many as forty-four percent of young lawyers surveyed in September 2022 opined that they “would leave their current jobs for a greater ability to work remotely elsewhere.”35
Though presenting initial challenges, the shift to remote work has yielded unique opportunities for clients. The pandemic has instilled a new convenience with cost effective savings.36 With limited travel expenses, representation is more accessible to clients. Hearings and mediations that were previously all- day events that required travel now may occur online. Hearings are also no able to be scheduled much more spontaneously.
Multiple courts have also started conducting remote jury trials with jurors appearing on-screen. Certain commentators have opined that this method was not “inherently worse or better,” but instead was “a legitimate way of going forward . . . considerably better than the alternative, which would be no trial at all.”37 Even with recognition that jurors reported poor internet access problems or inability to acquire technology to appear, anecdotal experiences of judges interviewed by NPR reflected “that remote jury proceedings in the U.S. have increased participation, boosted efficiency [ ] reduced travel expenses . . . [and] [shown] more diverse jury pools.”38 In some states, it appears that this will remain an option for the future, as “[a] new law in California allows litigants to attend civil trials on video, rather than in person. King County Superior Court [told] NPR that it hopes to keep running remote jury trials and has proposed a rule to the Washington State Supreme Court that could allow remote jury selection to continue for both criminal and civil trials throughout the state.” 39
Despite reports of positive experiences, there are still underlying concerns that set preference for in-person proceedings. Attorneys report that “they have caught jurors driving, watching YouTube, and even asking for a break – mid- testimony – to tend to a dog.”40 Similarly, in depositions attorneys “cannot be sure what the deponent is looking at. In other words, deponents can be reviewing documents, communicating with their attorney or other persons by use of their iPhone, or even looking up information on the internet, all of which
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Trial Tactics
FDCC ANNUAL INSIGHTS 2023