When you walk into Stanley Mosk Courthouse in Downtown Los Angeles, you find all 98 courtrooms equipped with microphones, cameras, and monitors. The same is true in Foley Square in Lower Manhattan. Glass dividers frame counsel tables and witness boxes, and stand in front of the clerk’s desk and judge’s bench. You see jurors, distanced in the jury box, listening to experts and other witnesses appearing by video. You hear one attorney arguing a motion through a mask in the courtroom and the distant voice of opposing counsel arguing through CourtCall or zoom. After reduced activity in these courtrooms for much of the last two years, they have come back to life. Trials and hearings with combinations of masked and virtual participants are now a common sight in courthouses in California, New York, and throughout the country.
The early days of the pandemic left many wondering when traditional in-person court proceedings would return. Those days now seem far behind as the legal system has adapted in response to COVID-19. Lessons have been learned about how, using technology, litigation can be conducted remotely and more efficiently—lessons that cannot be unlearned. The pandemic has wrought changes in how litigation is conducted; many of those changes will likely be permanent.
Virtual Trials
When quarantine mandates were first announced, court systems came to a halt or moved online. In California, emergency rules were implemented to suspend jury trials and hearings, and toll statutes of limitations and trial-timing rules. Federal and civil courts invested in web video equipment for hearings and trials. In Los Angeles County Superior Courts, audio and web video capabilities are now available to litigants at no cost. Although there were complications and technical issues along the way, zoom trials in California have become streamlined and are here to stay—at least for another year. California codified the propriety of remote trials in Civil Procedure Code Section 367.75, which is in effect until July 2023. This statute allows civil trials, including jury trials, and other civil proceedings to be conducted entirely or partly by video. In practice, this means that parties and witnesses may never set foot in the courtroom, or that only select witnesses appear by video.
On the East Coast, New York state courts suspended jury trials through Administrative Order 68-20 in March 2020. Unlike California, New York has not codified remote jury trials. Instead, in September 2020, New York left the decision to resume jury trials to individual courthouses. For example, Judge Lawrence Knipel announced in March 2021 that jury trials would resume in the Civil Term of the New York State Supreme Court in Brooklyn. The courthouses that resumed jury trials implemented many of the same adjustments found in California courthouses: mask requirements, social distancing, the option for a witness to testify by video, and plexiglass in every courtroom.
Bench trial litigants in New York also have the option to go virtual. On December 13, 2021, the Commercial Division of the New York State Court System adopted Rule 36, which permits virtual evidentiary hearings and bench trials by consent of the parties. In our experience, virtual bench trials have been conducted largely without issue. In fact, some judges prefer virtual bench trials and hope to offer the option to litigants for the foreseeable future.
The decision to request a remote trial falls squarely on the attorneys. Remote trials, more so than other aspects of virtual legal practice, come with clear disadvantages when compared to in-person proceedings. But because of mask mandates, virtual trials may be superior to in-person trials for the time being. Wearing a mask in the courtroom – so long as that continues — eliminates some of the important human advantages of in-person trials, because the mask covers up facial expressions and muffles voices. It may be more appealing to watch an advocate on zoom with a clear voice and unobstructed face than strain to hear the same advocate in person with a mask.
Looking to the future, it is likely that a hybrid system involving some video options will become the norm for trials on both coasts—at least in civil cases. The pandemic has shown legal system participants that litigants can have meaningful access to court proceedings remotely. Moreover, having the option to appear virtually, especially for non-party witnesses, reduces stress, inconvenience, and associated costs. With witnesses routinely appearing remotely, it is easy to imagine that geographic limits on subpoena powers – such as California Civil Procedure Code Section 1989’s rule that trial subpoenas can reach only witnesses in the state, or Federal Rule 45’s 100-mile rule – may become a thing of the past. It makes little sense to have rules that treat distant witnesses as unavailable when remote technology can make a witness’s physical location largely irrelevant. For all these reasons, we expect trials with remote components will have a place in the court systems long after the pandemic’s end.
Virtual Depositions
The virtual deposition is another development born out of the pandemic. Virtual depositions have been polarizing—even more so than virtual trials. It is easy to understand why. There are pros and cons for both the taking and defending attorneys in a virtual deposition. Being in the same physical space as the deponent allows the taking attorney to use body language, voice, and the subtle dynamics of human presence to attempt to influence a deponent. On the other hand, in virtual depositions, deponents are often not in the presence of their own attorneys; they are alone in a room. Having the deponent’s attorney in the same room can ease the deponent’s nerves, and facilitate communication through body language. In our experience, not having the defending attorney in the same room as the deponent is a big advantage to the deposing party. A defending attorney can arrange to be in the same room as the deponent in a virtual deposition in some situations, depending on the agreed rules in a case. Another advantage to the deposing attorney is being able to take the witness right to the relevant exhibit page or language on-screen, without delays of a witness wasting time thumbing through lengthy documents.
In late 2021, the Commercial Division of the New York State Court System codified virtual depositions in Rule 37. This Rule allows depositions to be held remotely with the consent of the parties or upon a motion “showing good cause,” which could range from COVID-related health concerns to expense issues to restrictions on availability to travel. Factors a court will consider when ruling on a motion include distance between the parties and the deponent, including time and costs of travel; safety of the parties and deponent; whether they may safely convene; whether the deponent is a party; and significance of the testimony to the claims and defenses.
Ultimately, the convenience and efficiency of virtual depositions often outweigh any in-person benefits. Rather than getting on a plane and traveling for most of the day (actually, two days, if both coasts or other countries are involved), the attorneys, court reporter, videographer, and deponent can log onto zoom from the comfort of their homes or local offices. This saves time and money better spent on substantive legal work.
But, no matter the preference, a virtual deposition does require adjustments. With in-person depositions, attorneys have the benefit of seeing exactly what materials the deponent has in front of him or her. It is more complicated over video. Attorneys usually have to rely on the honor system or ask to set up a viewing scheme —which is not always an available option. And use of exhibits can involve extra steps. Attorneys either have to plan to display their exhibits and share their screens, have a vendor ready to provide an exhibit- sharing program, or arrange for hard copies of exhibits (again, likely using an honor system) to be delivered to counsel and the witness in advance. With the money saved from cutting travel time, any incremental vendor or delivery costs can fit into the budget with room to spare.
As we emerge from the pandemic, attorneys and clients will have a choice to make—in-person depositions or virtual? This does not have to be an all-or-nothing decision. Although the cost and time-saving advantages of virtual depositions may make the decision to take a virtual deposition clear in some cases, defending attorneys should also exercise judgment and try to be in the same room with their client-deponent whenever possible. Ultimately, the pros and cons of in-person and virtual depositions must be weighed by attorneys and clients, taking into account the budget and needs of a particular case. But it is certain, based on the success of virtual depositions, that the virtual option will continue to be part of the conversation after the pandemic. In fact, some attorneys wonder whether in-person depositions will be the exception, rather than the norm, going forward.
Virtual Law and Motion
Although whether to permit virtual depositions may be an open question in some cases—virtual law and motion days have been implemented and attended by attorneys, judges, and at times clients, with resounding success. What used to require a trip to the courthouse, and three to four hours of waiting for fifteen minutes of oral argument, can now often be done in fifteen minutes altogether—again from a local office or home. And attorneys are now able to log into a zoom hearing in one district and then log off and attend another zoom meeting in a geographically distant district the same day. This allows for less expense and more streamlined motion calendaring, with court conflicts less likely to occur.
Whether remote hearings are here stay will largely depend on the judge. Before the pandemic, some judges preferred or encouraged telephonic hearings—for these judges, zoom hearings were an upgrade. For the majority of judges, however, this was not the case. At the beginning of the pandemic, there was reluctance to proceed virtually, especially when the technology was not up to par. Today, with upgrades in security and streaming capabilities, judges are divided between those who prefer remote appearances and those inclined to go back to in-person the moment restrictions lift. And these can be neighbors in the same courthouse: one of our lawyers was thanked by one judge for making an in-person, masked appearance at a status conference, only to be told by another department’s clerk the same week that her judge preferred appearances by phone.
There is also a divergence of views among advocates as to whether in-person arguments (including with masks) are more effective. The effectiveness of a virtual hearing can depend on the subject matter. In our experience, settlement conferences are better suited to be conducted in person, so that the parties can more meaningfully engage with each other and the settlement judge or mediator, and work toward a compromise in the same room. In addition, the judge or the parties may request an in-person hearing when the case involves complex legal arguments or exhibits the court should view in person. And, whatever the subject, no lawyer wants to appear remotely if his adversary is in person.
Although initially there were many concerns that remote hearings would come with disadvantages— whether to powers of persuasion, use of exhibits, reading the room, or otherwise—it is now evident that many of these concerns were unfounded, or at least outweighed by the advantages of remote capabilities.
Moving Forward
The pandemic has opened a door that cannot be shut. Over the past two years, experience on both coasts shows the legal system has learned that many aspects of litigation can be accomplished virtually, often with little sacrifice in effectiveness. With litigants having learned this, there is no turning back to the pre- pandemic assumption that proceedings must be in person. Remote proceedings have made trials, depositions, and hearings more efficient and more accessible for attorneys and clients. As a result, attorneys, judges, and clients will likely allow for, and even perhaps expect, remote proceedings to continue to one degree or another after the pandemic is over.