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| Elisabeth Ross |
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| Christopher Hennessy |
Long before COVID-19, courts and practitioners developed alternate means to conduct litigation in order to respond to real-world circumstances. The current crisis, however, demonstrates how courts, judges and attorneys may have to adapt further or even change the rules of litigation to bring greater flexibility to the way cases are handled.
In addition to being a wake-up call to the manner in which a pandemic can spread, perhaps COVID-19 — and how lawyers and courts are adapting — will serve as a wake-up call that moves aspects of litigation into the modern era.
The legal profession is steeped in, and literally bound by, tradition. The entire concept of stare decisis — the very predictable foundation on which the common law is constructed — requires courts to follow history, to "stand by things decided."
The history of litigation is an in-person activity, from the initial client meeting through discovery and arbitration or trial. Tradition drives many of these activities, but there are practical reasons behind them as well. These traditions and practices are challenged in the face of drastic events such as the emergency measures put in place by governors, mayors and courts in response to COVID-19.
Impact of Social Distancing on Operation of Courts
Many states' stay-at-home or shelter-in-place orders include legal services among the professional services deemed essential and therefore exempt.[2] Since at least mid-March, federal courts have been coordinating with local health officials to obtain the latest information about the spread of COVID-19 in their respective geographic regions.[3]
Many courts have increasingly limited or abandoned in-person operations in favor of teleconferencing and videoconferencing, certain filing deadlines have been extended, and even the U.S. Supreme Court has postponed oral arguments or rescheduled cases for telephonic argument.[4]
Lawyers, therefore, while may not be required to stay home, are navigating the impact of court orders entered in response to COVID-19, including how to remotely conduct certain aspects of litigation that traditionally relied on in-person appearances.
Tradition of In-Person Appearance in Civil Litigation
The prospect of physically appearing in a courtroom during a pandemic, let alone sitting in a conference room in close proximity to opposing counsel, court reporters and witnesses for a deposition, could be unnerving.
The tradition of face-to-face litigation in the civil context depends in large part on the physical appearance not just of judges and attorneys, but also jurors and witnesses, for example, who may be even more reluctant to appear in court or for deposition during a health crisis unless certain measures are in place to ensure their safety.
Yet this begs the question of why civil litigation places such emphasis on in-person appearance in the first place.[5]
Live testimony has its roots, in part, in early Roman legal practice and in the 14th century European tradition of judges recording not testimony, but "personal impressions made upon the judge by the witnesses, their way of answering questions, their reactions and behavior in Court."[6] The tradition of the trier of fact relying on demeanor evidence to make credibility determinations forms a foundation of our legal system.[7]
Federal Rules on Remote or Recorded Testimony and Appearances
The tradition is also evident in Rule 43(a) of the Federal Rules of Civil Procedure that provides:
At trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.[8]
The Advisory Committee notes emphasize the importance of presenting live testimony in court whenever possible:
The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of the witness face-to-face is accorded great value in our tradition.[9]
In terms of physical presence requirements for oral discovery, Rule 30 anticipates that depositions may be taken by remote means under certain circumstances: "The parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means."[10]
Here, again, however, the history of the Advisory Committee notes suggest a certain skepticism with respect to testimony recorded by mechanical, electronic or photographic means.[11]
Of course, there are also practical and logistical reasons why certain proceedings need to be in person. Imagine, for example, conducting voir dire via video- or teleconference. How much the televised impression of a person would play into jury selection would be something to certainly consider — in fact, it might become paramount.
In addition, in cases involving either voluminous documents or certain types of tangible artifacts, presenting such evidence to the trier of fact in person, in one location, may be more manageable than attempting to bring that evidence to various witnesses' locations. Yet these practical limitations at trial or hearing need not necessarily control or dictate the pretrial litigation process.
Pre-Social Distancing Challenges to Traditional In-Person Appearance
The "ceremony" of the courtroom is perhaps less compelling in light of stay-at-home orders and guidelines from the Centers for Disease Control and Prevention that emphasize measures such as social distancing and the use of face masks in public. However, long before COVID-19, technological innovations challenged in-person appearance requirements.
Since the early 1980s, while certainly not commonplace at that time, video depositions, hearings and even trials have existed in some jurisdictions.[12] In 1993, an experimental trial courtroom project, then known as Courtroom 21, The Courtroom of the 21st Century Today, was launched as a testing ground to determine how various technologies might serve or enhance litigation activities.[13]
Even though much has been made of the recent rush to learn videoconferencing, the idea of remote attorney appearances and remote trial testimony is as old as the technology itself.
Factors such as the geography of rural communities, for example, will also inform the culture of a particular venue and may impact the requirements for in-person appearances. Geographical concerns will often be reflected in a court's local rules.
For example, the Local Rules for the U.S. District Court for the District of Montana, where attorneys may otherwise have to drive five hours to attend a status hearing lasting minutes, provide for argument via video or phone conference.[14] In this sense, practitioners in rural areas may be much more accustomed to and comfortable with conducting virtual discovery and appearing for court hearings via video or telephone conferences than attorneys who practice in urban areas whose courts may have a stronger tradition of in-person appearances.
Today, we have a federal judiciary that has invested heavily in a long-range plan to improve its technological infrastructure that provides electronic public access and that features a case filing and case management platform, among other services.[15] The federal court system has emerged as a technological leader, now subject to being embraced by judges and lawyers.
As one commentator has suggested, "The technology has arrived. The debate about how and when to most effectively and judiciously use the technology, however, is still ongoing."[16]
While some resistance to these tools remains, the current health crisis highlights the importance of not only adopting but mastering and fully integrating such technologies in order to avoid unnecessarily long disruptions to the legal system.
Leveling the Playing Field
Although conducting depositions via videoconference is not a new concept, particularly for expert witnesses, it is worth considering how appearing for depositions by video- or teleconference impacts interpersonal dynamics in the adversarial process. Unlike in pre-COVID-19 practice, where perhaps just the witness appeared via video, in light of social distancing requirements, screen presence may have an equalizing effect, if for no other reason than each individual being reduced to the size of their assigned square of their video conference grid.
While this issue remains to be studied, anecdotally, at least, video- and teleconference appearances may force more courteous behavior and may curb intimidation tactics and bullying that are easier to deploy in person. Worth noting, also, is the role that certain technologies may have in promoting accessibility and rendering the judicial process more inclusive to people with disabilities.
At the same time, the effective use of technology requires access to bandwidth and other equipment and infrastructure that is simply not available to all litigants or even to all courts. As has been reported, broadband access plays an increasing role in creating democratic spaces.[17] In addition, frequent advancements in technology need to be matched with equally rigorous training available to the consumer.
Bar associations and continuing legal education options may be well-suited to provide the necessary ongoing training opportunities to legal professionals. Before technology can have a lasting impact on pretrial litigation, some minimal level of access will need to be established.
Through the Coronavirus Aid, Relief, and Economic Security, or CARES, Act passed by Congress on March 27, the federal judiciary will receive $7.5 million to help continue operations during the public health crisis.[18] Although the language setting forth how these funds are to be used is very broad, in light of recent orders encouraging telework and video- and audioconferencing, it can be expected that the funding will go toward providing better access to, and uninterrupted operation of, court proceedings.
Long-Term Impact of Social Distance Measures on Discovery
If the impact of COVID-19 on our behavior and social institutions is long-lasting, as predicted, we should expect an equally long-lasting shift toward adoption of technologies that allow discovery and other litigation activities to proceed in a manner that preserves social distancing. With these new modalities in place, certain potential problems will need to be addressed.
First, there is the issue of data privacy and protection. With the increase in use of videoconferencing platforms, several publicized security breaches have already demonstrated the need for careful vetting of such products.
In addition, while a lot of the gamesmanship of lawyers trying to control the room might be mitigated by virtue of "the room" being reduced to a screen, practitioners should be wary of new forms of gamesmanship that may be inevitable. For example, with each attorney, the witness and the court reporter appearing separately via videoconference, procedures must be established to prevent the presenting attorney from communicating with the witness during active questioning.
As practitioners increasingly make use of videoconferencing to conduct discovery, we expect new protocols and indeed a new litigation etiquette will eventually take shape to address these concerns.
As one scholar has suggested, "Communication is at the heart of litigation; everything else is secondary."[19] There can be no question that social distancing and other precautionary measures put in place in response to COVID-19 will impact the communication practices lawyers depend on to litigate.
To the extent these practices will now depend on new communication technologies, those needs can be balanced against the tradition of in-person litigation activities. Perhaps what emerges from these challenging times will be lawyers and courts embracing technology to a lasting effect.
Elisabeth Ross is an associate and Christopher Hennessy is a member at Cozen O'Connor PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.politico.com/news/2020/04/16/coronavirus-stay-home-orders-extended-190889.
[2] See, e.g., Illinois's Executive Order in Response to COVID-19, at par. 12(r), defining "legal services" as an Essential Business. https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf.
[3] https://www.uscourts.gov/news/2020/03/12/judiciary-preparedness-coronavirus-covid-19.
[4] https://www.supremecourt.gov/announcements/COVID-19_Guidance_April_17.pdf.
[5] Then again, "It is only shallow people who do not judge by appearances." Oscar Wilde, The Picture of Dorian Gray.
[6] James P. Timony, Demeanor Credibility, 49 Cath. U. L. Rev. 903 at 916-917 (2000), quoting NLRB v. Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952). Available at: https://scholarship.law.edu/lawreview/vol49/iss4/2.
[7] Id., at 921.
[8] FED. R. Civ. P. 43(a). The Confrontation Clause of the 6th Amendment raises obvious issues with respect to criminal cases. The discussion and analysis here is limited to civil litigation.
[9] Id. at Notes of Advisory Committee on Rules —1996 Amendment.
[10] FED. R. Civ. P. 30(b)(4).
[11] "Because these methods give rise to problems of accuracy and trustworthiness, the party taking the deposition is required to apply for a court order. The order is to specify how the testimony is to be recorded, preserved, and filed, and it may contain whatever additional safeguards the court deems necessary." Id. at Notes of Advisory Committee on Rules — 1970 Amendment.
[12] Timony, supra, at 915, n. 51.
[13] For a detailed discussion of this project, see, Lederer, Fredric I., "Technology Comes to the Courtroom, and ..." (1994). 1097-Faculty Publications. 639. https://scholarship.law.wm.edu/facpubs/639. See, also, https://law.wm.edu/academics/intellectuallife/researchcenters/clct/.
[14] Montana Civil Rule 7.1(e). https://www.mtd.uscourts.gov/sites/mtd/files/2019%20eff.%2012-1%20Local%20Rules.pdf.
[15] https://www.uscourts.gov/sites/default/files/it_long_range_plan_fy_2020_0.pdf.
[16] Daniel Devoe and Sarita Frattaroli. Videoconferencing In the Courtroom: Benefits, Concerns, and How to Move Forward, Boston, Mass.: Massachusetts Social Law Library, 2009. http://socialaw.com/docs/default-source/judge-william-g.-young/judging-in-the-american-legal-system/04devoe-sarita-paper.pdf.
[17] https://www.forbes.com/sites/karenweaver/2020/03/23/is-living-without-the-internet-possible-in-this-coronavirus-world/#7375fe337391.
[18] https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf.
[19] Lederer, supra, at 1113.
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