Resolving civil disputes in court used to involve a regular series of trips to tall office buildings and courthouses where we all sat close and breathed on one another to take depositions, mediate disputes, appear at hearings and try cases. Now that we are kicked out of the buildings, must the dispute resolution process grind to a halt? No, while the “jury is out” on the the conduct of jury trials, much of what we do other than jury trials can be Zoom-ized.
Here is my report card on resolving civil disputes from one’s living room: “Zoomigation.”
Mediations: A. In nearly all civil business disputes parties are ordered to attend mediation, a half-day or day devoted to settlement. Pre-Covid 19 mediations already involved a lot of sitting around doodling with emails on your phone or laptop waiting for face time with the mediator. During an all-day mediation, maybe one-third of the time is spent discussing case evaluation and trading demands and offers. In video mediations, the parties can appear in a joint “room” if an all hands session is warranted, and otherwise log into a “breakout room” where representatives of only one side are connected. The mediator can work between breakout rooms. The inevitable doodling can still be done and the video face time with the mediator is just fine. I find this just as effective as if conducted in person.
Document Discovery: A-. Parties did not need to be in the same room to serve discovery requests and responses, look for and produce documents and review the documents produced by the other side. All of this can be done in lockdown. The courts are not open for motions to compel, so disputes will remain in deadlock until the courts hear non-emergency motions, but otherwise, the process of written information exchange can carry on as always.
Depositions: B. Some lawyers are objecting to taking depositions remotely, while in other cases the parties are voluntarily usingvideo depositions. While courts are not open for hearings on whether to compel video depositions, arbitrators are dealing with whether video depositions will be required. The process of asking questions, lodging objections and getting answers is about 80 to 90% as effective on video as if conducted in person. A little time is lost with latency in audio connections and people speaking over one another, but an examination can be conducted. Examining a witness over an exhibit can be slower. If the witness is shown a long document on screen share, there could be time lost scrolling up and down. The better practice would be to send the exhibits in advance and limit screen sharing to exhibits the importance of which become apparent on the fly.
Jury Trials: Inc. The big question remains how, and when, courts will resume civil jury trials.So many hearings and trials have been suspended that there is a backlog of work through which the courts must plow when they reopen. I suspect civil jury trials will be pushed into late 2020 or 2021. There is talk about conducting jury selection via video and then asking only the selected jurors to appear in the courthouse. Jury selection can be a subjective process. Lawyers like to pick up on gestures or body language in person. In courtrooms the potential jurors have little to do other than watch what happens in the courthouse. Online they could be distracted. Jurors unwilling to weather the risk of a trip to the courthouse will want to be excused. I think the quality of jury selection will be degraded online. In the courthouse, the seats in the jury box are too close, so courts are talking about spreading the jury out in the rear gallery. With the bench and the witness box at the front of the courtrooms, and with all of us wearing masks, I do not know how we are supposed to see and hear one another. The jurors will be too close in the jury deliberation rooms, so the courts will need to find somewhere for them to sit six feet apart upon deliberation. It is too soon to tell whether we can successfully return to trying civil jury cases before we can safely gather close together. Thus, the grade for trials is “Incomplete.”