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Building a Case Virtually: Discovery and Mediation During COVID-19

September 09, 2020

By Daniel A. Kapner and Kelley J. Halliburton

Conference Call

The COVID-19 pandemic has upended civil trial calendars and forced courts, lawyers, and parties to make difficult decisions about how best to administer and/or adjudicate ongoing civil lawsuits. The U.S. District Court for the District of Columbia suspended all jury trials starting in March 2020; entered standing orders in April, May, and July extending the suspension; and announced a plan for the phased restoration of operations, with civil jury trials scheduled to restart in November 2020. The D.C. Superior Court has entered multiple orders suspending civil jury trials until further notice.

The Supreme Court of Virginia declared a judicial emergency in March 2020 staying all civil jury trials and entered 10 orders extending the judicial emergency. Also in March, the Maryland Court of Appeals suspended all civil jury trials and entered a plan in May for the progressive resumption of full judicial operations, with civil jury trials restarting in October 2020.

Given the state of the pandemic, fluctuation of coronavirus rates in the region, and physical distancing guidelines, there is no telling when courts will return to full operations. State and federal courts are thus managing their civil dockets, as best as possible, by conducting hearings remotely using telephone and video-conferencing platforms and continuing to suspend civil jury trials until they are safe to resume.

Lawyers and clients have had to develop strategies to advance claims and defenses during these uncertain times through technology. One significant development, with ramifications extending beyond the pandemic, is the transition to conducting depositions and mediations remotely.

With respect to depositions, it is no longer a simple matter for a trial lawyer to sit directly across from a witness in a crowded conference room and utilize eye contact, body language and posture, vocal dynamics, and the energy of the room to maximize a tough line of questioning. However, lawyers and clients have discovered that intelligently designed remote deposition platforms can allow parties to develop fact and expert testimony effectively without necessarily sacrificing quality.

Several well-known national litigation support vendors provide remote deposition services, such as TransPerfect Legal Solutions, U.S. Legal Support, Veritext, Lexitas, and Planet Depos. Vendors generally provide remote video-conferencing deposition services powered by Zoom or WebEx that may include the following standard or add-on features:

  • Remote or local court reporter for entire proceedings;
  • Enhanced security;
  • Screen sharing, breakout rooms, and recording and chat functions;
  • Ability to share exhibits via screen sharing in the video conference platform or, depending on the document size, through the chat feature;
  • Real-time transcript streaming and videography services; and
  • Technical support services.

Some vendors also offer add-on services for managing exhibits that are particularly beneficial in document-heavy cases and useful in virtual depositions. Several others provide browser-based deposition exhibit management tools that provide a cloud-based repository for exhibits whereby a user can store documents in private folders on the platform and move them into shared public folders for distribution to all parties and the witness when introducing exhibits. Software trainings and demonstrations are readily available so that attorneys can test-run and become comfortable with the software and any add-on exhibit management tools. A brief pre-deposition training session by the vendor with the witness is advisable to ensure a smooth deposition.

Pricing for remote depositions is similar to in-person depositions in that it generally is based on a per page fee per party for deposition transcripts, which varies depending on the number of orders, plus add-on fees for the use of exhibit management tools, real-time transcript streaming, preparation of rough transcripts, and videography services in the event a party requires certification of a video feed for use at trial. Some fees may be shared by the parties.

Litigation support vendors also offer remote mediation services by utilizing the same or similar virtual platforms. An attorney and client representatives can meet with the mediator and the other parties in a plenary or main room. This room can be used by the attorney to advocate his or her client’s position by simultaneously making a presentation to the mediator and the parties as if everyone were sitting around the same conference table. Then, attorneys can meet with their clients in private breakout rooms and the mediator can engage in shuttle diplomacy between rooms just as he or she would if the mediation were conducted in person. Lawyers can also “chat” with clients, other lawyers, and other attendees during mediation presentations and the mediation process.

Since shelter-in-place orders were entered, our firm has conducted many remote depositions and mediations involving parties located throughout the United States and abroad with surprisingly positive results. The substantial savings of travel costs, attorney travel time, and copying costs combined with intelligent technical features and stable performance of a remote platform, plus the convenience of attending a deposition from an office or home setting, may outweigh the benefits of conducting depositions and mediations in person. And clients may insist after the pandemic is over, for good reason, that depositions and mediations continue remotely as a cost-saving tool. Only the future will tell the extent to which the use of technology to litigate virtually will remain common practice after the pandemic subsides.

Daniel A. Kapner and Kelley J. Halliburton are members of Shapiro, Lifschitz & Schram, P.C. Kapner is part of the firm’s trial practice, construction law, and power and energy construction groups. Halliburton is an attorney with the firm’s litigation, construction law, and government contracts groups.

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