Trial and Error: The Future of Remote Litigation
Litigators have felt the impacts of the COVID-19 pandemic since shutdowns began nationwide in March of 2020. The systems and practices that had been in place for so long were turned upside down, bringing routine litigation procedures to a screeching halt. Inevitably, the novel issues that began to arise left clients with questions and concerns that seemed to have no answer. Now, nearly one year later, the questions and concerns have evolved, but so have the solutions. As this new world of remote litigation becomes more familiar, creating new efficiencies and more effective processes, the notion of simply returning to “the way things were” becomes less realistic. Instead, even after the roll out of a vaccine, we expect to see a hybrid system – one in which both in-person and remote proceedings will be common place.
The Current Situation
In March 2020, the President of the United States “declared a national emergency due to the spread of the COVID-19 virus,” and the Center for Disease Control “noted that the best way to prevent illness is to minimize person-to-person contact.” Courts began to order all depositions be taken via telephone, videoconference, or other remote means. By April 2020, “[a]ttorneys and litigants all over the country [began] adapting to a new way of practicing law, including conducting depositions and deposition preparation remotely.” As we approached summer of 2020, the nation’s death toll surpassed 120,000 and the “indisputable health risks connected with travel and in-person gatherings” became apparent. The language in headlines and cases across the country became impossible to ignore, and COVID-19 came to be known as “a potentially fatal illness with the ability to spread though asymptomatic carriers, with no approved cure, treatment or vaccine.”
Seeking to balance unprecedented health concerns with the demands of court proceedings, litigators and their clients have been forced to seek out innovative solutions. The confusion that played out in the ad hoc approach to solving pandemic-related crises, played out in courtrooms with rapidly changing procedures and expectations. Throughout 2020, courts nationwide were shut down, reopened, and shut down again, limiting services and transitioning to an increase in remote proceedings.
With the benefit of hindsight, perhaps consistency or collective efforts to refine procedures across states, or even within states and counties, could have led to more efficiencies and less turbulence. However, the unique nature of the pandemic and the challenges that came along with it left courts, even in neighboring counties, coming up with inconsistent and oftentimes incompatible solutions. Orders relating to court business, operating status, and public and employee safety across the nation have now littered court websites and dockets, with some still in effect and some outdated, prolonging the instability.
Perhaps most emblematic of the challenges is the example of jury trials – courts that began resuming jury trials generally were located in parts of the country where coronavirus numbers were trending downward, whereas courts located in “hotspots” continued to postpone jury trials in fear of encouraging the spread. By the Summer of 2020, some parties speculated that things would be different in the Fall, rendering remote proceedings unnecessary. But public health officials advised otherwise, and some courts took notice of this advice. Dr. Fauci stated he believed a second wave of coronavirus infections was “inevitable” and that “the worst-case scenario…involve[d] a second, larger wave of infections this fall and winter.” Much to our dismay, Dr. Fauci was correct.
Now, with the “second wave” of the virus, courts have continued to postpone jury trials again, but we still see a lack of consistency. The Federal Court in the Southern District of Florida issued an order in October continuing all jury trials set to begin on or after March 30, 2020, to April 5, 2021. Other courts have already resumed jury trials, although usually on a limited basis.
Nearly one year later, courts, litigators and their clients are beginning to see solutions that, to everyone’s surprise, have worked. The pandemic has forced the civil bar to culturally accept the use of technology that dramatically increases accessibility without the need for appearances, but not without consequences. Remote proceedings have become commonplace, leaving many asking – what does the future hold? While some attorneys are eager to get back to in-person proceedings, others are keen on continuing in a remote world, with few even hoping that in-person business is eliminated completely.
With vaccines being tested and administered, a post-pandemic world is in sight. Still, there are unanswered questions and concerns that remain unaddressed. But, one thing we can say with confidence – courthouses are here to stay. Although we have seen virtual trials completed by attorneys at Womble and around the country, the reality is that in-person trials are more consistent with the formality expected of the proceedings, allow greater opportunity to focus on the incoming evidence, and usually provide trial counsel with more control. Fundamentally, for the factfinder, credibility may be much harder to gauge in a virtual environment. But for the wide array of other pre-trial proceedings, such as status conferences and motions hearings, the benefits of proceeding remotely are more difficult to disregard.
Pandemic-induced changes have created challenges for both in-person and virtual court proceedings. Many courts now require masks or face coverings to enter the courthouse, and only those people with business at the courthouse are allowed to enter. Lack of media access has caused concern in many venues, including North Carolina. Furthermore, the risk to court personnel has caused slowdowns and shutdowns. For example, all in-person North Carolina court hearings were suspended from Mid-December to Mid-January.
All across the country, jury trials have been halted yet again. In January 2021, the U.S. District Court for the Northern District of Georgia recited findings that conditions in Georgia were “consistent with ‘a full pandemic resurgence’” and continued its nearly year-long suspension of jury trials because “the Court does not foresee either a sufficient decline in infections or a sufficient increase in vaccinations . . . to resume jury trials.” The suspension of court proceedings has inevitably led to issues with backlog in the courts. This has created somewhat of a crisis for the criminal justice system and the constitutional rights of criminal defendants. Even in a health crisis, the Sixth Amendment guarantees rights that must be provided in an open court of law, including the right to confront accusers and the right to confer confidentially with counsel. Arguably the biggest concern is that people are sitting in jail awaiting trials that continue to be pushed back. This will also lead to civil cases being pushed further behind as jury pools and other court resources will need to be rationed, with criminal cases likely being prioritized.
In Texas, as well as many other states, zero jury trials were held between March 2020 and June 2020. Contrasting with 2019 numbers, a staggering 186 jury trials were held on average in criminal and civil cases per week. Although 25 criminal jury trials were held between June 2020 and September 2020, the back log of cases, which continues to grow, “will likely take the state years to overcome.”
These delays have left many attorneys asking “when will my case be tried?” As trials are pushed further and further back, attorneys will have to deal with an array of issues. Will key witnesses still be available? If so, will they need to be re-deposed? Will expert reports need to be reissued? How will cases be impacted by the further staling of evidence? How have damages changed? Have juror attitudes changed now that hundreds of thousands of Americans have died in a pandemic that has transformed American life? While these are questions that come up in the regular course of litigation, for example in a case that has been appealed and remanded for trial years later, the fact that the delay is due to a pandemic may create a greater impact.
Some judges tapped into their creative sides to develop solutions to allow jury trials to continue. Many old courthouses are too cramped for social distancing, so some jurisdictions turned to high school gyms and ballrooms to continue proceedings. Other jurisdictions looked to history, exploring the possibility of staging trials outdoors as courts did during the flu pandemic of 1918. While the idea of outdoor trials is a possibility in rural areas, the concept would be difficult to implement in big cities like Los Angeles or Atlanta, where large, open outdoor spaces are hard to come by.
For courts that have proceeded with jury trials, another lingering uncertainty from the pandemic involves a fundamental principle of jurisprudence – can jury pools reflect the community in serving their role as the fair and impartial factfinder? COVID-19 has had a disproportionate impact on African Americans and Hispanics. In Chicago, for example, African Americans comprise a third of the city’s population, but account for half of those who have tested positive for the Coronavirus. Hospitalization rates among non-Hispanic Black people and Hispanic or Latino people were both about 4.7 times the rate of non-Hispanic White people. Older Americans have also been disproportionately impacted by COVID-19. People aged 65 and above comprise 80.6 percent of the fatality rate. Again, this increased risk potentially discourages or prevents some Americans from participating in jury proceedings and that risks rendering a jury pool that does not reflect the community. Facilitating remote proceedings where possible has become vital in order to reserve court resources, personal protective equipment, and space for social distancing for proceedings that must be in-person.
Although many proceedings have continued remotely, the quality of these proceedings and ability to represent clients may be impacted. As some of the nonverbal cues involved in communication are lost, the level of trust and focus among speakers may be distorted. For example, practitioners report that speakers in a remote setting may be less capable of detecting sincerity and deception , such that the ability to judge the credibility of witnesses, and even opposing counsel, has been impacted. Attorneys may not be able to confer with the client or direct a client to adjust their behavior, as they could while in the courtroom, limiting an attorney’s ability to control the presentation and fully advise a client. This also may potentially raise due process concerns regarding whether counsel can adequately represent a client remotely. Further, appearing in court remotely has been shown to influence how a party behaves, although the change in behavior is hard to predict.
The good news with the pandemic-era jury selection issues is this – litigators have always dealt with prejudices and differences in a community during the jury selection process. The problem is that while our society is culturally and socially heterogeneous, with sharp differences among various groups, our jury system operates as though we have a homogenous culture and society. Being more cognitive of the new sensitives, biases, and disparities is crucial. The continued use of jury consultants will surely aid in this readjustment.
In addition to the issues inherent in remote proceedings, the quality of technology has also impacted remote proceedings. Many attorneys who were otherwise unfamiliar with video conferencing technologies such as WebEx and Zoom were forced to learn these systems and their limitations. In depositions, for example, attorneys had to learn how to present exhibits remotely. Pre-pandemic, the task was simple – hand the exhibit across the table to the deponent. In the pandemic-era, the task was not so simple and attorneys were required to learn, often on the fly, how to virtually present exhibits to deponents and opposing counsel. Lead time, preparation, and the contours of professionalism and decorum were all impacted as individualized safety concerns were weighed, counsel entered into complex protocols, and courts weighed in on the fairness of same.
And, of course, there are issues that are a continued source of anxiety – poor connectivity, Wi-Fi, and bandwidth. The COVID-19 crisis placed an unprecedented demand on communication networks, and this, too, has impacted the efficient functioning of remote proceedings.
After speaking with a business litigator, a superior court judge, and a patent prosecutor, the consensus is this: the chances the world of litigation will return to its pre-pandemic ways are slim. We are more likely to see a system that incorporates a hybrid of in-person and remote proceedings.
The overall attitude and receptivity to remote proceedings by judges has fundamentally changed. Throughout the pandemic judges urged litigants to find a way to proceed. Now, claims of prejudice from proceeding remotely are less compelling. And the balance of hardships and considerations for accommodating a witness or counsel seeking to proceed or appear remotely is an altogether new calculus. The “new normal” is here, per the case law.
Continued use of remote proceedings to preserve court resources for trials is likely to be of ongoing paramount concern for judges and courts as they seek to address the already unthinkable backlog of trials. Thus, we are seeing innovations in the jury selection process. For example, the Arizona Supreme Court reduced the number of potential jurors that can be struck by each side to two, from the usual six. In Maryland’s federal courthouse in Baltimore, the court is summonsing double the number of usual candidates , to avoid the situation that occurred in Multnomah County, Portland where out of 500 potential jurors who were summoned, only 121 appeared (about half of the usual number) .
Courts’ use of remote proceedings communicates that courts and the justice system prioritize the physical safety of the participants in that system. Creating an in-person courtroom environment that reduces fear of spreading the virus potentially aids in creating more diverse jury pools that reflect the community. In Maryland’s federal courthouse in Baltimore, for example, the court prescreens jurors through questionnaires that give them the option of raising health concerns related to age or medical condition. Some courts have installed plexiglass barriers between juror chairs. In one of the first COVID-era trials in Idaho, Judge B. Lynn Winmill followed an expert epidemiologist’s recommendation and adjusted the air circulation system so that every hour, the courtroom was replenished with 100 percent fresh outdoor air, rather than a mix of fresh air and recycled indoor air.
Courts are looking for additional creative ways to deal with the backlogs made worse by the pandemic. The Florida court system is asking lawmakers for $16 million this year to handle increased workloads associated with the COVID-19 pandemic, most of that to begin dealing with a nearly one million-case backlog. Although the court disposed of 2.5 million cases in 2020, “more resources will be needed” said Judge Steinbeck, Twentieth Circuit Judge and chair of the Trial Court Budget Commission.
In addition to increased funding, courts may have to turn to unconventional ways of dealing with the backlog. Early dispute resolution would force prosecutors and defenders to meet and discuss the issues of a case with the judge, including the likelihood of conviction and the type of sentence that might be available for a guilty defendant. The effectiveness of these strategies is uncertain at best, but one thing that is certain is the use of technology to deal with the backlog in courts – namely, the continued use of remote proceedings.
Adaptive procedures which have proven to be highly useful will likely become the norm. Remote calendar hearings are arguably the most notable of these because they essentially allow an attorney to be in multiple places at once. An attorney can have a preliminary hearing in Los Angeles at 8:00 a.m. and another in San Francisco at 9:30 a.m. An attorney can even attend hearings at the same time in different cities, as it is unlikely the judge will call the matters at the same time. Attorneys are then capable of spreading themselves geographically in a way unimaginable before the pandemic. This also makes calendar calls and status conferences more efficient and cheaper for clients, with little downside.
There is disagreement about whether evidentiary and other similar hearings in which the credibility of a witness, for example, is a factor will continue to be held virtually. Some believe the use of remote technology to conduct an evidentiary hearing allows for a better reading of a witnesses’ credibility. Although the parties may lose out on the ability to read certain body language, the face-to-face quality of a remote hearing allows for an intimate reading of an individual that would otherwise be impossible in a courtroom setting in which all parties, including judge and jury, are spread out across the courtroom. However, the majority view seems to be that there is a fundamental loss of control for the examiner and disadvantage for the factfinder in a remote proceeding. Credibility determinations may be more difficult as a result, and the opportunity for witness mischief (with off-screen notes or a coach) are greater.
Based on our experience and observations, we are confident that some of the remote court policies and procedures adopted during the pandemic will remain in place even after the threat of the virus has subsided. When you take into account that many of these changes were being considered before the pandemic hit, and the fact that the next generation of attorneys have spent their entire legal education and early careers doing things remotely, the push toward some remote proceedings seems certain to endure. As time goes on and the state of the pandemic evolves, we will see new technologies and strategies for approaching remote and in-person litigation.