By Darren A. Craig and Jennifer A. Rulon
The COVID-19 pandemic has challenged and changed how lawyers do business. Although law firms were considered essential businesses by Indiana’s stay-at-home orders, most lawyers responsibly transitioned their practices to remote working arrangements. This article focuses on how litigators used — and continue to use — technology to meet client needs and court deadlines.
Litigation attorneys must meet with their clients to plan case strategy, gather relevant documents and prepare for depositions and trials. Lawyers and clients working remotely adapted to virtual meetings, using software such as Microsoft Teams and Zoom. These programs permit lawyers to conduct video conferences with clients and other members of a litigation team. By using video, lawyers can connect with clients in a way that may not happen over the telephone. In addition to video conferencing, these programs allow participants to share their screens so participants can share presentations and edit documents collaboratively.
While these programs were available before the pandemic, they were rarely used by lawyers. In fact, clients were often educating their lawyers about the potential of these programs. Of course, there are some concerns critical to the practice of law that lawyers should know and make sure their clients know. Whether working in the office or at home, lawyers must preserve the confidentiality of their client communications. Lawyers must learn the security features of the technology they are using, both software and hardware. Lawyers should also guard the confidentiality of their communications by making sure their physical work area is secure.
Before the pandemic, depositions were nearly always conducted in person. Stay-at-home orders and travel restrictions required many lawyers to begin conducting depositions remotely, often using the same technology they used for client meetings. Even after the lifting of many restrictions, many lawyers continue to conduct depositions by video, especially because Indiana is now requiring masks statewide. Using technology such as Zoom, Skype or Microsoft Teams can allow a litigator to observe the full facial expressions of a witness that may be obscured by a mask. Video conferencing software is now widely implemented in nearly all court reporting services.
There are many benefits to a virtual deposition. Primarily, it lets witnesses testify in a way that is more compelling than being covered with a face mask or over the telephone. The witness may be more at ease and willing to talk in this setting, since any fears of being exposed to COVID-19 are put to rest. It is also easier and less expensive to schedule depositions because no travel is necessary.
One of the stumbling blocks you may encounter is how to handle exhibits. One option is to send all the exhibits in advance to opposing counsel and the witness. However, this will almost certainly tell opposing counsel and the witness what you will be asking. A better option may be to screen share. Platforms such as Zoom and Microsoft Teams make it easy to share exhibits in real time. You can also transfer exhibits using the chat feature of Zoom.
Overall, the key to a successful virtual deposition is to practice with the technology in advance. Becoming comfortable with a virtual deposition platform can allow attorneys to continue serving their clients’ needs by keeping cases moving during the pandemic.
Courts, administrative agencies and arbitrators have been conducting telephonic hearings for many years. Those hearings, however, have largely been limited to status conferences or arguments concerning relatively minor issues in a case. But with the closing of physical courthouses and office buildings, the role of remote hearings has dramatically expanded to cover oral arguments on dispositive motions and appeals, settlement conferences and even evidentiary hearings.
The technology of hearings ranges from the telephone to video conferencing software. Many courts have expanded the range of hearings conducted by telephone. The 7th Circuit Court of Appeals, for example, has been conducting oral arguments by telephone for several months. Other courts, including the Indiana Supreme Court and Court of Appeals, opted to conduct oral arguments via Zoom.
Evidentiary hearings can be conducted effectively by telephone even if lawyers need to introduce exhibits. Here, too, courts and agencies have responded by using software that allows all participants to view documents. The Marion Superior Courts, for example, have used Cisco Webex for hearings, and some state agencies are using Microsoft Teams.
These technologies allow lawyers to present their cases much like they do during an in-person hearing. As with depositions, the key to conducting a successful hearing is practicing with the technology in advance. Court staff can be helpful in this respect, just as they are when explaining the use of technology in a courtroom.
When the COVID-19 pandemic is finally brought under control, the requirements of face coverings, social distancing and limiting occupancy in venues will likely go away. But the rapid embrace and improvement of technology during the pandemic may result in lasting changes to the practice of law. Before the pandemic, in-person meetings were treated as the default method of meeting, with virtual meetings conducted only when there was a compelling reason. After the pandemic, virtual meetings may be viewed as the default, with in-person meetings conducted only when there is a compelling reason.•