In my last director’s column, published one year ago this week, I wrote about the importance of relationships. Less than a month later, we were forced to retreat into our homes and away from our colleagues, friends and extended family. How’s that for timing?
One of the more interesting side effects of COVID-19, apart from the loss of taste and smell, is how the pandemic has accelerated trends such as the rise in remote work and the shift toward a life lived increasingly online. COVID has been great for Amazon, Zoom and Netflix. Not so much for concert promoters and commercial real estate owners.
For lawyers, COVID has forced us out of courtrooms, mediations, conferences and client visits. Videoconferencing software, usually Zoom, has stepped in to fill the void. Zoom is an imperfect substitute with plenty of drawbacks. However, after nearly a year litigating cases via Zoom, it has become an ingrained part of the practice of law. Even after COVID, Zoom is likely here to stay.
With the end of the pandemic in sight (God willing), it seems appropriate to reflect on the results of moving certain litigation activities online. Some should stay, and some should go.
Videoconference depositions have existed for a long time, and they have their appropriate place. The obvious advantage of a remote deposition is the elimination of travel time and expense. Remote depositions can be an efficient option when a witness, usually an expert witness or a lesser fact witness, is located across the country or around the world. In this sense, Zoom has hardly changed anything.
I am concerned that after COVID, some clients may view Zoom as an appropriate substitute for more depositions than they previously considered handling remotely. This seems like a mistake. Although paying to fly a lawyer across the country for a deposition may be a tempting expense to cut, I still think the decision must be made on a case-by-case basis.
Litigation is about information advantages, and remote interactions simply transmit less information than in-person interactions. In a personal injury plaintiff’s deposition, for instance, a Zoom deposition provides no opportunity to observe the plaintiff as he or she moves around the room. In-person depositions also allow attorneys to roll with the punches and use exhibits as necessary, without emailing all of them in advance. It allows an attorney to size up the opponent.
Although getting your questions answered is the primary reason for taking a deposition, it is not the only reason. I do not intend to let Zoom permanently change my deposition habits after COVID.
I have mediated several complex cases via Zoom during the pandemic, and this is an area where the Zoom software shines. Separating parties into “rooms” re-creates the mediation experience nicely, and the elimination of travel makes it much easier on corporate clients.
I do think something is lost in remote mediations, however. Corporate clients are largely deprived of the ability to size up the plaintiff and assess his or her presentation. In a personal injury case, mediation may be the only time an insurance representative can actually see the plaintiff and form an opinion about the permanency of any injuries.
Remote mediations also remove some of the urgency and intensity that can be helpful in achieving resolution. Physically gathering all the parties together at a mediator’s office encourages the parties to try everything they can to explore settlement before they leave and go their separate ways. Sitting behind a computer doesn’t quite make litigants feel obligated in the same way.
I will be open to Zoom mediation as appropriate, but it will not replace physical mediations entirely in my practice.
I have been most surprised with how well Zoom works for hearings and court appearances. In fact, I recently argued a complex products liability motion and was glad the hearing took place via Zoom.
My particular case involved a highly technical product and required diagrams and videos in order to help the court understand its key functions. If the hearing had been conducted in person, I would have been forced to print large posters or perhaps find a TV or projector to bring to the courtroom (technology abilities remain inconsistent across the state courts). With Zoom, I simply made a PowerPoint and shared my screen with the judge. It also saved me a long trip to South Bend.
For court appearances short of trial, I hope to see the use of Zoom expanded after the pandemic.•
• Keith Mundrick is a partner in the Indianapolis office of SmithAmundsen and serves on the board of directors of DTCI. Opinions expressed in this article are those of the author.