Litigating During a Pandemic

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Oct 13, 2020

I moved to Los Angeles from New York 11 years ago.  One of my favorite aspects of practicing law here was appearing in different courthouses throughout Southern California.  I enjoyed seeing the mountains as I drove out to San Bernardino or visiting many courthouses around LA and Orange County.  I also got to observe oral arguments, the judge’s rulings, and the attorneys (once I recall wondering at the Santa Monica courthouse if it was really acceptable to wear flip flops to court).   Similarly, I enjoyed traveling for depositions or mediations, where I would meet my clients in person.  Having that personal interaction, even with opposing counsel, was a nice change of pace from just being in an office interacting by phone or email.  Now, however, we are litigating in a pandemic, and many things we never thought about in litigation have changed.

First, for court appearances, instead driving around and walking into the courthouse, my commute is either to my kitchen or to my LCW office so I can appear remotely.  For my first remote video appearance at the Los Angeles Superior Court, I appeared from my LCW office, just to be sure I did not have any technology issues and there would be no family interruptions.  While initially there were some complications connecting, once it worked, I had an up close view of the judge and I was able to successfully argue the motions just like I was appearing in Court.  I was able to listen to the other matters before the judge that day, just like I would if I were in court in person, but I couldn’t always see the attorneys.  One aspect that was different, and true for all video calls, is that I am conscious of how I appear on camera – now sensitive to touching my face or even drinking water.  I also need to be mindful to speak more slowly and clearly to account for any lag or unclarity in the transmission.  Another issue is to be mindful of lighting and how it appears on the computer.  These additional considerations were never something one needed to consider when appearing in person, but on the bright side, you don’t need to worry about parking!  While I would still prefer to appear in person to argue motions when the pandemic ends, appearing by video was very effective and could be more efficient to alleviate travel time.

Second, depositions have gone remote.  When the pandemic first started, we thought we would be back in the office in a month or two, so we just postponed our depositions.  But as we realized we would be working remotely longer than we anticipated, we began taking remote depositions.  There were so many questions to consider.  How would we show witnesses exhibits?  Would the witnesses cheat – could they secretly be looking at notes they prepared in advance?  What if the witness didn’t have the equipment or technology at home to do a Zoom appearance?  Could the court reporter swear the witness if they were not in the same place?  But as all attorneys and court reporters tackled these issues, we quickly worked them out.  Through Zoom, we can share documents, and the witness can be given control to look through all the pages of an exhibit.  We can ask the witness to move the camera around the room so we can see there are no notes or others present, and can ask the witness to put their phone behind them, and in a way that we can see them doing so on their computer’s camera.  When we realized the pandemic wasn’t ending any time soon, we deposed the plaintiff in a case by Zoom this summer and it was an effective and successful deposition.  We were able to thoroughly cross-examine the witness just as we would in a conference room, and the court reporter was able to prepare the same transcript.  At one point the plaintiff became emotional and cried, which to me indicates the impact of the deposition was the same as being together in a conference room.   Zoom depositions also offer more flexibility in scheduling, and may make it easier for clients to attend.  In addition, I recently agreed to accommodate a non-party witness’s work schedule to take the deposition at 7:30 a.m.  If we all had to be in the office, it would be more difficult on everyone’s schedule, but now we just need to log onto Zoom from our homes.

Finally, mediations have also gone virtual.  Before the pandemic, a mediation typically involved both sides in separate rooms and the mediator going back and forth to reach a settlement.  Mediations often lasted into the early evening, settling when everyone was worn out after a long day.  There also was a lot of downtime when the mediator was with the other side, which gave the attorneys and clients time to chat and build more personal connections.  Mediations on Zoom are different.  During the pandemic, I have had two Zoom mediations.  They were both overall shorter than I think they would have been in person; perhaps there was more of a desire to cut to the chase when everyone was in a room alone in front of a computer or people had Zoom fatigue.  There was also more free time, because often when the mediator was with the other side, everyone just muted and turned the camera off, and then we would be alerted when it was time to go back.  While this made for more efficient use of time, we lost some of the opportunities for personal connections (though in one mediation when we had some downtime, the mediator showed us how to play Scattergories online and we all shared our dogs on video).

As the pandemic is not ending any time soon, we will continue to use technology for remote appearances at motion hearings, depositions, and mediations In addition, while we cannot do in-person witness interviews, Zoom allows us to connect face to face better than a telephone.  Senate Bill 1146 was recently enacted and signed by the Governor on September 18, 2020.  This law took effect immediately as urgency legislation and implements pandemic-related changes including permitting remote depositions at the election of the deponent or the deposing party, as well as changes for electronic service, electronic signatures, and trial continuances.

This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.