Amazon CEO Jeff Bezos, Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai and Apple CEO Tim Cook all raise their hands to be sworn in to testify remotely via videoconference during a U.S. House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law hearing, July 29, 2020. U.S. House Judiciary Committee via REUTERS
September 21, 2022 – The COVID-19 pandemic that has dominated so much of all our lives also has spurred the rollout of now-necessary technological tools in civil litigation, including developments encouraged by the Federal Judicial Center nearly two decades ago.
Back in 2004, the Center's Manual for Complex Litigation advised that virtual hearings and electronic presentation of evidence could mitigate many of the challenges inherent to complex litigation: "Videoconferencing makes it possible to present the testimony of absent witnesses, including witnesses recalled for only brief testimony, without the cost and other disadvantages of depositions. In some instances, the cost and burden of obtaining the physical presence of a witness will be disproportionate to the importance of the expected testimony."
The nature and direction of the changes in litigation technology have long been anticipated — it just took a pandemic to get the courts and parties moving. Judge Herbert B. Dixon proved prescient when, in a July 2013 opinion piece called "Technology and the Courts: A Futurist View" in the American Bar Association's Judges Journal, he suggested, under the subheading "Increased Video Hearings Will Lead to General Acceptance of Virtual Hearings and Trials," that the legal profession will abandon its reservations about remote video participation in a court proceeding.
It will not be unusual for an attorney to attend scheduled appearances in several courts across the country in a single day. … Because of the prevalence of these near-virtual hearings, courts will gradually increase the availability of hearings being transmitted by online streaming.
Judge Dixon foresaw that there would be "a steady increase in video appearances by parties for motion hearings, including some evidentiary hearings, which will include remote witnesses, lawyers, and judges," but also that "[s]ome judges or lawyers will come to this process kicking and screaming but will nevertheless relent due to necessity, e.g., to avoid an undesired delay in the proceeding."
The pandemic made concerns about mere "costs" or "undesired delay" beside the point, as public health concerns kept lawyers and witnesses out of courtrooms and offices, and the choice became one between remote proceedings and none at all. When using videoconferencing technology moved from being a question of "whether" to one of "how," innovation came hard and fast on all fronts.
The 2020 CARES Act authorized federal judges to use video and telephone conferences during the COVID-19 emergency, including, with the defendants' consent, in certain criminal proceedings. In response, the Judicial Conference of the United States issued an exception, for the duration of court-ordered emergency procedural orders, to the federal prohibition of cameras and broadcasting in federal court.
Now that there has been proof of concept, it is foreseeable that, when the pandemic ebbs, whatever the continued uses of videoconferencing technology in other kinds of cases, it will be a permanent feature of complex civil litigation.
In response to the pandemic, courts and law firms invested heavily in remote-communication platforms like Zoom, Webex, and Microsoft Teams for internal and external use, and they have become comfortable using those platforms on a regular basis. Setting health risks aside, the demonstrated benefits in terms of cost, time, and convenience for courts, counsel, and clients are compelling and continuing, and there is no good reason to forgo them.
In an article in Skadden's 2022 Insights earlier this year, Lauren Aguiar, Boris Bershteyn, Allison M. Brown and Abigail Davis (Sheehan) noted, "In many respects, these changes are overdue and — especially in the context of complex multidistrict or cross-border disputes — could reduce some litigation costs. Companies with large litigation portfolios should view remote technology not as a temporary response to a public health crisis, but as a lasting change in how they access the courts." ("The Pandemic Brought Some Welcome Innovations to the Justice Process, but Also Many New Challenges," Skadden's 2022 Insights, Skadden, Arps, Slate, Meagher & Flom LLP, Jan. 19, 2022)
One perhaps ironic example (in which this author has been involved) has been the enormous wave of insurance coverage litigation in federal and state courts nationally over pandemic-related business losses. Where the commercial coverage was provided by a tower of primary and excess insurers, it has been typical to have trial-court hearings on dispositive motions or appellate arguments that last for hours and have 20 or more attorneys from a host of firms appearing from around the country. Only a handful of these attorneys may actually present substantive argument, while the rest are there to ensure that their clients' separate interests are represented and protected.
Especially during the heights of the pandemic, such hearings risk being "super spreader" events if conducted in person. Conducting the hearings by videoconference also has spared counsel expensive and time-consuming travel to the courthouse — not to mention additional time allocated to making sure the attorney arrived in plenty of time in the destination city and at the designated courtroom. It has also often permitted distant clients to watch the proceedings, instead of just waiting for their lawyers' reports.
In addition to court conferences, other aspects of litigation are proving amenable to virtual conferencing. For example, while in-person depositions of key or critical witnesses will remain invaluable, remote depositions of record custodians or witnesses expected to testify as to only limited issues may become commonplace or the norm. In complex civil litigation, where it is more likely that witnesses, parties, and counsel may be spread out, remote depositions make practical sense for witnesses whose testimony may be essential but not especially controversial or hotly contested.
Certain aspects of civil litigation may not be as well-suited to virtual participation. Jury trials may be especially problematic, as jurors who view the trial remotely from home have introduced challenges in keeping their attention and avoiding distractions from their home environments. But jury trials are relatively rare in civil litigation, and even if the case ultimately ends up before an in-person jury, trial lawyers have observed that jurors may feel quite comfortable in watching witnesses testify on large video screens in the courtroom.
In situations where observing nonverbal communications and maintaining eye contact are important for tactical or other reasons, in-person procedures and proceedings will continue. But videoconferencing will remain a valuable alternative or supplement where in-person contact is less critical or overcome by considerations of cost, convenience, and efficiency.
Consistent with the view that many of the innovations rolled out in earnest during the pandemic should be treated and refined as permanent changes to complex civil litigation practice, on Oct. 20, 2021, the James F. Humphreys Complex Litigation Center at George Washington University Law School published for public comment a set of "Guidelines and Best Practices in Class-Action Litigation."
These guidelines include recommendations for courts to amend their local rules and practices to incorporate virtual proceedings as a permanently available option in appropriate circumstances. As to class actions, these guidelines recognize that, "[o]n the parties' request, a court should utilize virtual proceedings for pretrial proceedings, including status conferences, motion hearings, preliminary and final approval hearings to promote efficiency and preserve the resources of the parties."
The Humphreys Complex Litigation Center's proposed guidelines also recognize the need for courts to state their expectations about counsel's conduct and responsibility for handling the propriety, logistics, security, and contingency preparations associated with the technology. These responsibilities include: "dress[ing] in appropriate courtroom or business attire," "ensur[ing] that the operation of the remote appearance is run smoothly and efficiently," "tak[ing] steps to ensure that the platform used to make virtual appearances is secure," and "put[ting] in place a contingency plan to address technology or other interruptions."
The guidelines implicitly require that attorneys have adequate technological support and proficiency to ensure that virtual hearings are run efficiently and securely.
Videoconferencing was greatly eased by the successful deployment of platforms that integrate with Outlook and other email and calendar software, enabling the organizer to circulate secure one-click links that allow invitees to join the conference with preconfigured devices, and without complicated setups, or even entry of long user IDs and passwords. But even such relatively user-friendly systems require some experience with operating and troubleshooting them — lest another embarrassed attorney become the next one to have to explain to a court, like the Texas attorney in 2021, "I'm not a cat."
Conducting civil litigation through the COVID-19 pandemic has revealed the resilience of our legal processes and the adaptability of most judges, lawyers, and staff. Technologies once thought fanciful have become standard operating proceedings.
The pandemic may have jump-started in two years a transition to advanced communication technology in litigation that otherwise might have taken decades, but that transition will now continue at a pace faster than ever seen before. Courts and counsel should reflect on the recent innovations that should be preserved and refined even after the masks may be put away.
Fredric D. Bellamy is a regular contributing columnist on data privacy laws and litigation for Reuters Legal News and Westlaw Today.
Fredric D. Bellamy is a partner with Dickinson Wright PLLC, where he practices business litigation. His cases frequently involve scientific, technological, or other complex issues, including those relating to cybersecurity and data privacy issues, insurance coverage, environmental and toxic tort, and intellectual property claims. In 2018, he received a certification from Harvard's Office of the Vice Provost for Advances in Learning following completion of the course, "Cybersecurity: Managing Risk in the Information Age." He is based in Phoenix and can be reached at fb******@di*************.com.
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