Ready Camera One: Remote Litigation in the Era of Social Distancing
By: Jennifer Adair, Jennifer Markowski and Andy Treese
Evaluating claims to move them towards resolution or trial is the lifeblood of a defense practice. This typically requires direct interaction with a plaintiff and key witnesses, either at deposition (to hear their testimony, to form impressions of how they will be received by a jury), at mediation (to assure the plaintiff personally understands the strengths and weaknesses of the case), or at trial. In person interaction is simply not as practical as it used to be and, in some places, it might be illegal. It is not surprising that we have been fielding inquiries from claims professionals and their insureds about whether we can continue to move their cases forward by conducting discovery and settling claims in an age of social distancing.
The answer is yes. At Freeman Mathis & Gary our attorneys routinely take depositions remotely and have had great success with remote mediation. Both, however, carry their own practical considerations.
- Depositions. Remote depositions have been around for well over a decade, but the increased demand is changing the marketplace. Many lawyers who have never used or have avoided remote deposition technology no longer have a practical choice. Some are adapting more quickly than others: we have seen some opposing counsel take clean, effective depositions by video, but we have also seen opposing counsel take depositions that were not effective due to lack of familiarity with the technology and/or a misunderstanding of the different methodologies necessary to prepare for a remote deposition. Counsel should consider several factors when preparing for and conducting an online deposition:
- Is this a deposition you are willing to take remotely? Minor witnesses, some experts, or witnesses in cases with low exposure can probably be deposed remotely without concern. Depending on the facts and exposure associated with the case, there may be some witnesses you may simply want to depose in person, even if it delays the case for 45-60 days.
- Prepare for your deposition at least two days early. Identify the exhibits you are certain to use at the deposition and assure they can be presented cleanly to the witness. For those that are obvious (complaint, incident report, interrogatory responses, etc.) consider having them pre-marked and distributed by email to opposing counsel, the witness and court reporter to speed the deposition along. Also, identify documents you may want to use (medical records, photographs, etc.) and have those available and ready to present during the deposition. These can be circulated by email and shown to the participants using the screen sharing function of most videoconferencing technology.
- Understand the technology. What program will be used? How will exhibits be presented? Have you tested the video conferencing software or any other technology you need to use during the deposition? How does the audio system work (i.e. can more than one person speak at a time or would an objection by counsel also inadvertently mute the witness’ microphone)?
- Consider the logistics of the oath. Who will place the witness under oath and where will they be? Does your state permit oaths to be administered remotely? Consider making a formal stipulation on the record that, due to the pandemic, the parties agree to the sufficiency of an oath administered remotely.
- Decide how objections will be handled. If it suits your purpose strategically, you and opposing counsel may choose to reserve some objections that would typically be made on the record.
- Understand the cost and the final product. How much is the vendor charging for this deposition as opposed to a standard deposition? Are they generating a traditional transcript or is the deposition also being recorded?
- Make a plan for confidentiality. If the witness is your client, plan in advance how you will communicate (by email, texting, etc.) during the course of the deposition to avoid inadvertent disclosures. Make sure you know how to turn off your camera and microphone or, better yet, go into another room to converse with your client.
- Expect the deposition to take longer than usual. Don’t allow logistical limitations to curtail zealous representation.
- Mediations. Mediation and other forms of ADR are effective because a knowledgeable, competent mediator can provide litigants and their counsel on both sides a “reality check” as to the strengths and weaknesses of their cases. The process works better when the mediator can speak directly to the parties and for that reason, our instinct in the past has been to require personal attendance at mediation. So far, however, we have found remote mediation to make sense for several reasons:
- Remote mediation is generally effective. Some cases simply don’t settle until a mediator twists a metaphorical arm or two. Is that effective when the literal arms aren’t in the same room as the mediator? So far, anyway, the answer seems to be yes – when the technology works. Where that is the case, mediators can still engage in private caucuses and have the ability to review or share exhibits, documents, etc. as needed. We can envision specific cases where a video mediation might not be appropriate but so far, remote mediation has been getting cases resolved.
- Remote mediations keep cases moving. Governmental orders aside, many of our adjusters and risk managers have been restricted by their employers from non-essential travel for the foreseeable future. Remote mediation presents a cost-effective opportunity to resolve cases now.
- Remote mediation is cost effective (for now). Most of our vendors are currently providing remote mediation services at no extra charge. Remember, mediation centers are a business, too, and have a vested interest in keeping their dockets full by providing the technology and know-how to make mediation convenient to the parties, via Zoom or similar systems.
- Litigants may have a greater motivation to settle their claims when faced with the reality that jury trials for civil cases seem unlikely to take place for at least several months after state and local judicial emergencies resolve.
- Attorneys want to keep cases moving, too. Counsel may view remote mediation as a step that can be taken towards trial. Most courts already require ADR / mediation before trial. Others are likely to being imposing that requirement to control their post-coronavirus dockets.
- Understand privacy issues related to the technology. Media reports suggest that Zoom and potentially other platforms are at risk for security issues. Make sure the mediator provides a password for participants to gain access, and that meetings are locked so that nobody can join without the moderator’s permission. Ensure that the mediator has disabled the recording function, and that chat is not archived. Ask your mediator to send instructions in advance so that you are comfortable with the measures being taken, and can request any additional protections you deem appropriate.
At Freeman Mathis & Gary, our team will continue to monitor and report on the use of emerging technologies to litigate claims and obtain favorable outcomes for our clients.
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