COVID-19 Dispute Resolution and Advocacy Now and Beyond
Without question, the coronavirus has permanently altered the way we view and operate in the world. Even when a vaccine is found to combat the SARS-CoV-2 virus, prognosticators believe that the way America does business could well be altered, permanently. For instance, recent studies suggest that, in the virtually and technologically trained world that has emerged by necessity because of the pandemic, office space may never resume to its pre-pandemic levels of use. With respect to the legal profession, during this period, courts have closed, hearing dates have been postponed, and jury trials have been cancelled. However, without an end to the pandemic in sight, courts, judges, and others involved in dispute resolution have turned to technology to handle day-to-day dispute resolution (sometimes, “DR”).
Typical business and many other types of cases are on hold; but even for courts that are reopening (and some are), there is almost no question that the yesteryear of the myriad aspects of dispute resolution will be permanently impacted by the use of technology to replace in-person activities – and not just until the pandemic is at bay, but for the foreseeable future. Currently, court officials are scrambling to provide access to justice without endangering the well-being of judges, lawyers, jurors, parties, and others seemingly critical to the DR process. DR is all-encompassing – it covers litigation and arbitration, mediations and settlement conferences, discovery, including oral depositions, trials, including those heard by a jury, arguments, status hearings, motion practice, and a host of court-connected matters that most of us don’t consider on a day-to-day basis, such as the filing of legal papers, the giving of an oath, or introducing exhibits in tribunals, judges and other proceedings (like depositions).
With these changes rapidly being implemented, there may well be a tidal shift in the way that lawyers strategize, advocate, and implement tactical aspects of their dispute resolution plans for their clients. For example, lawyers involved in DR must anticipate that depositions, live testimony, and evidence may well be taken and utilized on platforms that transcend these traditional in-person activities. Effective advocacy has always been tied to live presentations – arguments on motions, direct and cross examination of witnesses, the ability to affect credibility assessments by the trier of fact and the presentation of opening and closing arguments – whether in court, an arbitration or a session to mediate or settle a dispute. The in-person nature of such live presentations often alters an attorney’s strategy. For example, while a judge's beratement may ordinarily call for an aggressive, defensive response in court, but no such option exists; then one respectfully and graciously accepts the reprimand, and moves on as though nothing happened, and waits for the opportunity to make the point at another time.
The practice of law has always been about human interaction, but such may likely and forever change, as that interaction is now being filtered through the lens of a telephone or a video-conferencing platform. The credibility of witnesses, their preparation, and how they “come-across” through a technology platform, may well mask key issues in underlying proceedings or the trial or hearing, of a dispute. The same holds true for other evidence: whether two or three dimensional or illustrative or demonstrative evidence, will not have the same impact through technological means; as well as parties and their counsel: for years, we have heard stories of jurors deciding cases based on what they think of the presentation or appearance of a party or her counsel. All of this may permanently change in the next-wave of DR, and it will require clients, counsel and witnesses to be cognizant of these changes, and the impacts of being seen and heard through a video system, or a telephone line, rather than in person. Many years ago, I had a case involving embezzlement where a judge allowed the embezzler to testify in a bankruptcy proceeding by phone – the judge never had the chance to see the embezzler in person (subject to cross examination) and, while the proof was there, the icing on the cake – the credibility (or lack thereof) of the embezzler – was never truly seen by the court. The same will likely occur in future DR.
There are key lessons to be taken from this holistic view of how the practice of law will change given changes in all aspects of DR. Take, for example, a business that has a significant trademark, trade secret or other case (a partnership dispute or non-compete violation) that requires emergency relief. The hallmark of such cases has, traditionally, been to get the immediate attention of a judge or arbitrator, and press forward with prompt discovery, to reach a strategic goal (stopping the illegal conduct) through the implementation of various tactics to best achieve that outcome. In the current environment, it is challenging, to say the least, to get the attention of a court without in-person representation, especially when so many other pressing cases demand court time.
The fundamental task, then, is to reassess the traditional means to handle a case, from before a filing is even made (where do you file, what are the court’s practices, is there an alternate forum the parties can agree on, is early dispute resolution [“EDR”] feasible (even if not the most desirable), and similar considerations that will account for the limits and restrictions of the way DR has always been done), to today’s environment (i.e., coronavirus) and what can be expected in the era after the pandemic (e.g., virtual hearings, exhibits and arguments, recorded, well-rehearsed and remote testimony, and a lack of in-person, actor-driven advocacy, etc.). It will be important for all clients and their counsel to:
- Carefully consider what forum to proceed in – whether state court, federal court, agreed arbitration, alternative forums agreed to by the parties, or the possibility of EDR – as well as whether a bench or jury trial is advisable under the circumstances.
- Ensure that there is a full understanding of the court, arbitrator or other trier-of-fact, the applicable procedural rules, so-called standing and pre-trial orders and their impact on the underlying litigation plan, as well as how exactly your case will likely be processed and resolved (e.g., can you get prompt or expedited motions and hearings, the likelihood of remote testimony, how depositions will proceed, the logistics of a bench or jury trial, etc.).
- Carefully consider the ability to obtain your relief through paper submissions, rather than a phone call to your opponent that you intend to be in court in less than a day, seeking emergency relief. In a case handled not too long ago, my litigation team put a great deal of effort into making an emergency motion so compelling on its face – based on proper evidence and a compelling story presented in writing tied to that evidence, that the judge granted the motion as though the opponent had not even received notice of it (which was not the case). Your story – the advocacy of your presentation – regardless of the nature of the matter (a motion, a status hearing, a settlement conference, etc.), will likely be much more effective, if in a compelling written presentation.
- Understand that courts and other tribunals are not likely to consider "emergency" matters as warranting the immediate attention of the judge, arbitrator, or master presiding over the matter, unless there is a true emergency. The COVID-19 record is replete with stories of judges chastising lawyers, and showing great disdain, for matters that they view as insignificant relative to the pandemic. A heightened awareness of this standard will likely continue, warranting seeking such relief only in extenuating circumstances. A judge will not want to hear two lawyers fighting about how or when a deposition is going to take place, even once the pandemic is thwarted.
- Understand what will drive the outcome and who will be deciding the fate of your case: while old-school theory, it is even more important to effective DR to understand not only how your case will be decided, and the exact nature of the proceeding, but who will be making decisions critical to your case.
While the nature of the process of dispute resolution has dramatically changed and the trends of change are likely to continue, there are ways to deal with the change, even if impediments such as technology initially slow down progress – as advocates will catch up. It is imperative for counsel and their clients to work together, to adapt to our current predicament, but also plan future disputes utilizing the above processes to serve clients well in a post-coronavirus era.