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Making the case: remote litigation can benefit your franchise in the long-term

Making the case: remote litigation can benefit your franchise in the long-term

As with many learnings from the past year, remote litigation could be here to stay – here’s why that could be very good for your business.

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The COVID-19 pandemic disrupted nearly every aspect of the global economy. Businesses, regardless of industry, weathered significant changes over the past 15 months. The same is most likely true of suppliers, service providers, competitors, and customers.

Businesses in nearly every corner of the global economy had to adjust in real time to an ever-changing, often uncertain landscape. The legal profession fared no differently. After a bumpy start, lawyers demonstrated that they could adapt in ways that improve client results so long as they adhered to certain best practices.

Remote litigation is likely here to stay in one form or another and understanding its benefits and the best practices for succeeding in it will help effectively manage outside counsel to secure more cost-effective results for any business.

Benefits of remote litigation

Court proceedings briefly ground to a halt in March and April 2020, but in short order, the entire legal industry adapted to remote methods of dispute resolution. Depositions, mediations, hearings, and even trials took place over Zoom, Teams, Skype, or some other remote video-conferencing platform. Although it took a few months to smooth out the process, the COVID-19 pandemic proved that the legal profession can quickly adapt to help you and your businesses accomplish your goals no matter the circumstances.

The past 15 months have demonstrated that lawyers can streamline litigation to create cost and time efficiencies to assist in cheaper and quicker dispute resolution, without sacrificing the effectiveness of our client advocacy.

That certain aspects of litigation historically took place in-person is not a sufficient reason to completely forego remote proceedings now that the COVID-19 pandemic is subsiding in the United States.

“The dead-weight time spent commuting to the court is now new-found time – a rare and valuable resource”

The advantages and benefits of remote litigation for business litigants are fairly clear but are still difficult to overstate. They include:

• Significantly reducing attorneys’ fees associated with eliminating lawyer travel time and associated expenses

• Increasing your outside lawyers’ overall efficiency, resulting in recaptured time to focus on other tasks for your business that were otherwise waylaid spent getting to and from in-person proceedings

• Avoiding the substantial business and time disruptions for parties that come with trial, arbitration, deposition, and mediation preparation and attendance

• Increasing the availability and ease of participation for senior executives or other key decision-makers who no longer need to travel to attend negotiations, mediations, hearings, or other important litigation events

The upshot of these benefits: the shift online has appreciably increased efficiency; litigants are no longer required to go through the physical motions of traveling to a different city, making their way to the courthouse, parking, and shuffling through security with documents in hand to argue a motion within a fifteen-minute time slot.

The dead-weight time spent commuting to the court is now newfound time – a rare and valuable resource. Attorneys have the ability to work on matters up until a hearing or proceeding actually starts.

“Above all, lawyers must do everything they can in advance of a remote trial to ensure that they feel comfortable and prepared”

Immediately after its conclusion, attorneys are already where they need to be to take on their next matter instead of having to make their way back to the office from the courthouse. These small periods of time each day may not seem like much, but over time, the aggregate allows for an increase in productivity by eliminating once unavoidable tasks.

For businesses, this means that their outside lawyers have reclaimed sizable chunks of their daily schedules, which should lead to more efficiency and quicker turnaround on tasks otherwise delayed because of time spent on in-person proceedings.

Remote litigation pitfalls

Remote litigation is not without its practical concerns – a few legitimate, others overstated. Despite its efficiencies, modern technology still has issues that are hard to anticipate and often difficult to remedy.

Many of these practical concerns and pitfalls are unsurprising, not unique to the legal industry, and all too familiar 15 months into the COVID-19 pandemic. Much like a typical intra-company video conference, internet connectivity, unexpected and unwelcome visitors in the video background, unprofessionalism on the part of video participants, and a habitual inability of participants to master the ‘mute’ button have all become a regular and repeated characteristic of remote litigation.

Unlike typical conference calls, however, the seriousness and high stakes nature of trials and other litigation proceedings compound the detrimental effects of these pitfalls. When enough missteps pile one on top of the other, especially when the missteps deteriorate the clarity or consistency of the communication (such as internet connectivity issues, unnecessary disruptions, an inability to “read” witnesses, judges, or arbitrators), advocates’ persuasiveness may lose effectiveness and jeopardize a favorable result.

In addition, there have been concerns safeguarding sensitive matters in litigation. Most court filings are public record. Confidential information (such as exhibits or testimony) faces a higher risk of exposure to third parties in remote proceedings when it is not always certain that the people appearing on camera are, indeed, the only ones listening.

None of these concerns completely supplant the benefits attendant to remote litigation. As previously noted, remote communication is far from seamless. In the new world of remote litigation, one of the most crucial tasks of outside counsel is to ensure that the difficulties of communicating remotely do not hamper zealous advocacy on your behalf.

Fortunately, preparation and adherence to certain best practices go a long way toward securing that result.

Best practices in remote litigation

Successfully limiting the impact of the aforementioned difficulties begins long before jury selection or opening statements. In preparing for remote pre-trial hearings and trial itself, counsel should consider adhering to the following best practices:

• Communicate and coordinate early and often with the court clerk who will likely be responsible for a number crucial tasks throughout litigation proceedings, including affording attorneys the opportunity to conduct ‘dry runs’ and presenting exhibits to the jury

• Continue to refer to local administrative/judicial standing orders that establish the procedures for the filing and management of exhibits. Many courts may now articulate and impose specific requirements for remote litigation

• Confirm before the trial begins that all participants have: (1) the most-recent version of the software platform the court is using; (2) a solid internet connection; and (3) working audio and video feeds

• Work with the court to ensure that all parties receive a certain level of assurance that the witnesses called at trial are not receiving outside help or external communications during trial

• Recognize that removing a jury’s ability to perceive a witness’s non-verbal cues in person can detrimentally affect the jury’s credibility assessment, and consider how to convey effectively the credibility of their own witnesses via a remote platform

Above all, lawyers must do everything they can in advance of a remote trial to ensure that they feel comfortable and prepared. Being prepared in advance of trial is nothing new, of course, but pretrial activities have taken on a new emphasis this year.

Conducting a trial via a remote platform is still new for all lawyers, and with the usual stress of trial under normal circumstances still present, it is more important than ever that lawyers work to limit the distractions and hiccups that are part-and-parcel of virtual meetings.

“Regardless of the potential pitfalls and perceived issues associated with remote litigation, the online forum will likely outlast the pandemic”

A benefit to your business

Regardless of the potential pitfalls and perceived issues associated with remote litigation, the online forum will likely outlast the pandemic. Views in the legal profession certainly differ about the benefits and drawbacks of remote litigation.

There are lawyers who believe no aspect of litigation ought to continue on a remote basis post-pandemic. Technology failures, client confidentiality concerns, and challenges with conveying credibility and persuasiveness justify these concerns.

Nonetheless, remote litigation creates efficiencies that reduce outside lawyers’ time investment and minimizes business disruption for executives. These are real, tangible, appreciable benefits for the business community. And after 15 months of litigating remotely, a few general observations can be made about remote litigation:

• It works far better than anyone would have guessed in February 2020

• Technological issues were largely ironed out in the first few weeks of the pandemic and, even then, mostly stemmed from user error

• Breaches of client confidentiality as a result of remote litigation are extraordinarily rare

• Quality trial lawyers can (and will) adapt and effectively advocate on behalf of their clients no matter the medium

Because remote litigation was not the disaster many predicted, countless judges and lawyers have indicated that they will embrace the continued use of remote platforms for certain aspects of litigation – for example, mediations, depositions, arbitrations, and pre-trial oral argument.

Fully embracing remote platforms for even a portion of the litigation process will undoubtedly benefit business litigants and lawyers alike. The business and legal communities would do well to lean into certain aspects of remote litigation to fully realize these benefits.

The authors

Peter Loh is vice chair of the Distribution & Franchise Practice and a complex commercial litigation lawyer at Foley & Lardner LLP.

Tim Patterson is an associate and business litigation lawyer with Foley & Lardner LLP. He is a member of the firm’s distribution & franchise practice.

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