Trends from the COVID Era: “Litigation in Zoom Land”

Only a year and a half ago, businesses and consumers watched the world change drastically nearly overnight. This summer, our world has finally started to reopen. How can your organization adjust to the aspects of modern life that won’t return to normal, post-pandemic? We held interviews with three experts in our network to tap into their career experience and gauge their thoughts on a shifting future in the context of COVID trends. Our final interview with litigation expert Fred covered changes in American law over the last half-century. You can read all about those legal insights here and continue onward for Fred’s thought leadership on COVID-era effects on litigation specifically.

Fred’s experience as an attorney spans three decades. His extensive legal career has escalated in case size — from jailing villains to combatting increasingly severe financial crimes to inhabiting the political world to practicing privately, all the way up to his current firm role as head of litigation. Fred specializes in “trench warfare” and works in an extremely wide variety of commercial litigation cases.

How COVID Has Changed the Landscape

 

“COVID-19 has altered the world, possibly forever.” So begins Fred’s rumination on the effects of the pandemic on litigation and culture. His fourteen years’ experience in “the art and skill of advocacy” had afforded him the impression that proceedings cannot, in large part, be replicated in what he calls “Zoom land.” Advocacy trends and methods, he notes, have historically depended on jurisdiction and venue, with a heavy emphasis on convenience. Consider each participant waking up early to prepare their appearance carefully at home and then commute to trial. These in-person depositions have historically required opponent and third-party witnesses to spend time and funds on flights and hotel rooms to reach the deposition center. Moving forward, judges will care much less where witnesses are located, “eroding” this issue significantly.

Fantastic Cases and Where to Find Them

 

Several years ago, document location changed significantly when SharePoint, DropBox and other filesharing hubs took precedence — and we can only expect to see this trend to skyrocket in the future. Early in the COVID era, Fred wrote about the prospect of corralling a jury by Zoom, and the according massive shift. (We can’t share his blog post, but you can reach out for a consultation with Fred any time you need.) Zoom, he observes, allows us to learn, attend or take part in social interactions — but, despite professional and personal stimulations and rewards, life by video also “dehumanizes” the participants.

For witnesses, deposing in person has always afforded confirmation of credibility, an understanding of their work, and an impression of persona. On the attorney side, time- honored practices in person include standing in front of a judge, reading facial expressions, wandering around the courtroom, establishing eye contact with participants, and communicating nonverbally. Seasoned attorneys with a penchant for drama would often employ “red pen” tactics to pin witnesses down with physical documentation related to their prior work and decisions. Similarly theatrical lawyers’ practices included demonstrations of the complicated nature of witness’ expertise: Picture the performance of physically struggling with a big box of books. Each of these methods remains important, but all are now unavailable. Despite these glaring gaps for attorney histrionics in the system to come, Fred expects trial and deposition to take place via Zoom “probably forever.”

What About Types of Cases?

 

Fred expects to see an increase in alternate dispute resolution. “Sitting in a judge’s office trying to settle a case,” he maintains, “may not ever be the same.” Settlement conferences that have historically involved disparate parties — international participants, for example — will not happen in the ways we expect. The same is true for settlement conferences demanding participation from a large group of people. Fred anticipates “a permanent state of being from that standpoint.”

When it comes to labor and employment specifically, Fred foresees changes as dramatic as mail-in voting for union elections. He expects these trends to affect labor law. Examples may include an uptick in charges, trials, and hearings, as well as board meetings by Zoom. American work culture’s new instigations mean the National Labor Relations Board and IRS offices sprinkled around the country will be “moving at a slower pace” due to the constraints of working from home. Most of these offices, Fred observes, have not returned to their full- fledged conditions, ballooning government’s already famously slow administrative pace. Examples of “breakdown in level of involvement in activity” include the ethics bodies in various union states, which feature a plodding pace of investigation, communication and pursuit as it is. In short, we will see “a lower standard of momentum” across governmental edicts, interpretations and responses — and “administrative task overlords will not be as aggressive as moving things through the systems as they would have been before.”

The Upshot

 

According to Fred, the effects of the age of COVID will “drip into traditional advocacy” on a variety of levels. Examples include the struggle of litigating over Zoom; major constraints on “the art of advocacy”; trial prep in “Zoom-land”; a digital chokehold against courtroom hysterics; and a complete shift in the necessity of travel for litigators and witnesses.

For more related insights, check out our first two interview stories of expert insight regarding disaster preparedness for business continuity and on consumer psychology. No matter your organization’s focus, Expert ENGINE is here to help you succeed in a quickly changing world, so tap into the Expert ENGINE panel for the expert you need to win your next big case!

 

Written by Zaq Baker, Senior Manager, Expert ENGINE

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