Masks May Come Off, But Is Remote Litigation Here To Stay?

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers, Public Safety
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Mar 15, 2022

After two years of the Covid-19 pandemic, things are looking optimistic in California.  Covid case numbers and hospitalizations are declining and mask requirements are loosening.  For many, myself included, this is great news and a much needed “return to normal.”  At the same time, however, the pandemic brought some changes to our lives that we may not be ready to give up, including remote work.  Many attorneys discovered they could easily work from home, and by eliminating a commute, they had time to exercise or spend time with their families, which has become invaluable.   For myself, once my children returned to school in-person, I was able efficiently to work from home and found the time avoiding commuting made me happier.  I had more time to devote to work, exercise, cooking, and my family.

During the pandemic, litigation adapted and went remote.  In my October 2020 blog post, Litigating During a Pandemic, I discussed how litigation was adapting to the pandemic and how depositions, mediations, and court appearances were operating on a remote basis.  Now that we are two years in to the pandemic and restrictions are easing, what has changed?  Is litigation still remote?  Are attorneys longing for in-person appearances?

For the most part, depositions, mediations, and court appearances have continued remotely.  First, whether court appearances are remote depends largely on the court and judge, and for mediations and depositions, they depend on opposing counsel.  For example, Los Angeles Superior Court has eliminated social distancing and restored in-person access without capacity limits in all Los Angeles County courthouses and courtrooms, but attorneys may appear remotely for all appearances.  In the United States District Court for the Central District of California, in-person appearances are required unless the judge permits otherwise.

Second, many attorneys, including myself, have found remote depositions and mediations to work just as successfully as in-person appearances, and have additional advantages.  Since the pandemic started, I have taken or defended about a dozen remote depositions.  While at first, everyone was concerned about witnesses cheating – by having notes out of view, texting with someone, or having someone else present – I have not had those concerns arise in any deposition.  Rather, we can ask the witness to pan the camera around the room and ask questions to confirm no notes or others are present.  In addition, with the zoom pinned on the witness, I can focus on cross-examining the witness – alone in my office – just as I would sitting across the witness in a conference room.  When defending a deposition, I felt just as comfortable objecting to questions by zoom and was able to check in with the witness by phone during breaks, just as I would if alone in a conference room.

Third, mediations have also continued to stay remote, largely for the same reasons as depositions.    Mediations require the appearance of the parties, attorneys, and insurance representatives or other financial decision makers.  Mediations typically last all day, sometimes well into the evening.  However, usually there is a lot of downtime as the mediator is speaking with other side.  When mediations are remote, you are free to go on mute and turn off your camera, and turn to other work or activities.  When the mediator is ready, they will notify the attorney and everyone will come back.  Remote mediations allow everyone to have more control over their time – whether that is spent doing other work, making phone calls, or walking the dog during the break.  Also, all-day in person mediations can be very hard on the parties who have other pressing job duties – by allowing them to appear remotely it is easier on the parties and less burdensome to schedule.  Also, it is a large cost-savings for parties and insurance carriers to avoid travel time.

I have participated in several mediations since the pandemic.  While I had a few remote mediations that settled that same day well before dinner time, I also had a couple of remote mediations that did not reach an agreement by the end of the day, which sometimes occurs even when mediations are in-person.  Those cases eventually settled within weeks or months after the mediation thanks to continued involvement of the mediator.  However, perhaps those cases could have resolved sooner in an in-person mediation, but it is hard to know.  While zoom mediations are certainly convenient, for some cases, having everyone in a room physically can increase the commitment and engagement and lead to a settlement sooner than later.  It is important to understand the nature of the case, the personalities of the attorneys and parties, and preferences of the mediator, to evaluate whether to have a remote or in-person mediation.  In searching for a mediator recently, the majority of mediators we contacted were only offering zoom mediations.

Finally, remote depositions and mediations offer other advantages. They are easier to schedule – no one has to travel for the appearance, which also saves costs.  Being in your own office also has advantages.  If you need additional documents, for example, they are easily accessible.  Also, it is important to be mindful that even if you are comfortable being with others in a small room (masked or unmasked), others may not be quite ready for that environment or be at high risk for Covid and desire additional precautions.

While being on zoom for 8 hours a day in a deposition or mediation can be tiring, the flexibility for witnesses in scheduling, cost savings, and equal effectiveness of the deposition will make zoom depositions and mediations commonplace even if pandemic restrictions recede.

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