November 30, 2020
Navigating the Morass: Civil Litigation During COVID-19
BY: Howard Bullock and Konstantine Kastens
The COVID-19 pandemic outbreak has brought profound changes to almost every aspect of our daily lives, including how we as attorneys interact with the court system. This article seeks to provide a brief overview of how the global pandemic has impacted our court systems, focusing on civil litigation in state court.
COURT APPEARANCES AND TRIALS
Perhaps the biggest impact that the current pandemic has had on our civil justice system is its effect on civil jury trials. The current social distancing guidelines have presented local courts with extreme logistical challenges, particularly with bringing together the large numbers of people necessary to make up a venire panel and conduct jury selection. These challenges are compounded by the fact that each local court has different sizes of courtrooms, numbers of courtrooms, and available space to safely gather the venire panel, etc.
Therefore, in the Virginia Supreme Court’s Sixth Order Extending the Declaration of Judicial Emergency in Response to COVID-19 Emergency, the court requested that the chief judge from each circuit court submit plans for the safe resumption of jury trials, and upon approval by the Supreme Court, that locality can resume hearing jury trials. A list of the circuit courts with approved plans and currently hearing jury trials can be found on the Virginia state courts’ website. Additionally, information regarding each local court’s operations, orders, and procedures during the period of Judicial Emergency can be found on the state court’s website as well.
Of particular use to the practitioner during these times are the statutes authorizing the use of electronic video and audio communication systems to conduct a hearing or provide for the appearance of any parties and witnesses in any civil proceeding, whether in Juvenile and Domestic Relations Court, General District Court, or Circuit Court.[1] These statutes allow for the practitioner to request from the court permission to either conduct the entire hearing electronically, or have a party or witness appear electronically. This can be accomplished by filing a motion requesting the particular relief requested as far in advance as possible of the particular court appearance. Once the court grants the motion, the practitioner should then coordinate with the clerk’s office regarding the specific technological requirements of that particular court. Many courts have also included specific information regarding electronic appearances and hearings in their recent orders dealing with the judicial emergency, which again can be accessed on the Virginia State Court website.
DISCOVERY: REMOTE DEPOSITIONS
One area where Virginia courts are less involved throughout this social distancing scrimmage, prompting attorney improvisation, is remote depositions. For some attorneys, the challenges begin with setting up a webcam and unmuting the microphone. After overcoming these preliminary hurdles, the more common challenges range from getting and keeping all parties in one videoconference room, using exhibits (which can often include voluminous documents) and protecting sensitive information, to ensuring adequate internet bandwidth among participants and avoiding an array of other technological issues, all the while keeping in mind the Rules of the Supreme Court of Virginia.
As daunting as this process may appear, the reality is that with a little elbow grease of forethought, it can be a relatively stress-less endeavor. By following a few core measures, almost everything that can be done in person can also be done remotely.
At the outset, presume that technical glitches will always occur. Ensure that the platform you and opposing counsel agree to use is reliable and can accommodate parties’ needs, e.g., document sharing, breakout rooms, etc. Zoom and Cisco Webex are two popular platforms that both have document sharing capability for the presentation of exhibits. Familiarize yourself with the platform you use, as many of the amenities offered on these platforms are not always intuitive.
Ensure that you and your witness have adequate internet bandwidth to participate in depositions via videoconference. Coordinate in advance to confirm that your witness is equipped with the necessary technological capabilities. During remote deposition breaks, always remember to turn off your audio and video and advise your witness to do the same. To prevent third parties from freely entering your videoconference session, control access by assigning yourself or opposing counsel the responsibility of controlling the waiting room.
Create a logistical plan with opposing counsel ahead of the deposition that accounts for any foreseeable technical problems, including pausing the record if someone gets disconnected or procedural stipulations, such as consent for deponents to swear in with a court reporter who is not physically in the same room. Review the Rules of the Supreme Court of Virginia, which require that a remote deponent be sworn in by an officer in the same locality where the deponent is present,[2] provide procedural protocols for documenting the record,[3] and set forth rules for treatment of recordings and transcripts of depositions conducted remotely.[4]
Test your audio, microphone and camera well in advance of the deposition. Then test everything again just before going on the record. One way to prevent a party from dropping off is to use your telephone audio rather than your computer audio. Factor in sufficient lag time to address potential technological mishaps during the deposition. Again, accept that technical issues will arise. Ensure that the court reporter has the contact information of all participants—counsel and deponents—in the event that anyone gets dropped from the videoconference room. Importantly, take advantage of the experience that your court reporter brings—they have been at the forefront of this abrupt shift to remote depositions, bearing witness upon all of its successes and blunders. It never hurts to communicate with him or her on best practices.
The key takeaway is to plan ahead. While no plan is full proof against every technical glitch, security breach, ethical violation, or other mishap while conducting remote depositions, many potential calamities can be averted by formulating a few procedural guidelines. As practitioners further adapt to its efficiencies and clients continue to realize the cost savings, without or without COVID-19, remote depositions appear here to stay. Embrace the new normal with a framework to avoid common pitfalls.
CONCLUSION
While the challenges to litigation practice presented by the COVID-19 emergency can appear daunting at first, many can be efficiently addressed by the practitioner through planning and by maintaining flexibility and patience as we all adapt to the changes brought about by the pandemic.
[1] Va. Code Ann. § 16.1-93.1 (2020); id. § 16.1-276.3 (2020); id. § 17.1-513.2 (2020).
[2] Va. R. Sup. Ct. R. 4:5(b)(7) (2020).
[3] Id. R. 4:7A(b) (2013).
[4] Id. R. 4:7A(c)-(d) (2013).