Articles and Publications
White Paper: Navigating the Evolving Landscape of Remote Litigation, Mediation and Trials
November 16, 2023
On October 3, 2023, thirty-five experienced legal, corporate and insurance pros gathered in Philadelphia for the third Maron Marvel Roundtable. The group addressed several topics which are significant in today’s current litigation environment.
This is the first in a series of articles that will recap the topics discussed at the Roundtable and tries to place it into helpful insights and actionable strategies for effectively navigating this evolving terrain, emphasizing the value of cost savings and the need for adaptability in the digital era.
The litigation landscape has undergone a significant transformation during and in the wake of the COVID-19 pandemic. Remote litigation, mediation and trials have become crucial components of legal proceedings, offering both challenges and opportunities for legal professionals, corporations, and insurers.
Some recent law school graduates never had in-person law school class. Their three-year educations were virtual.
The practice has changed for all.
Remote Litigation: Maximizing Substance, Efficiency and Cost Savings
The discussion at the Roundtable began with one fundamental point: in-person litigation works.
In-person depositions, hearings, mediations, negotiations and trials are of paramount importance. The value of the opposing lawyers being together in person with each other, with witnesses, with judges, and with jurors is hard to overstate.
As one attendee noted at the outset: the Roundtable is in person for a reason. This reflects the power of in-person litigation as well.
However, the emergence of remote proceedings has introduced a host of opportunities for best practices and operational efficiencies across the legal sector.
Law firms, corporations, and insurers may consider the new strategies to leverage the benefits of remote litigation:
Quantifying Time and Cost Savings: Law firms and clients can emphasize the importance of quantifying the time and cost savings associated with remote depositions and hearings. Demonstrating these metrics to clients can serve as a compelling factor in promoting the adoption of remote litigation best practices. Numerous industry sources address the economic benefits of remote litigation and the potential for significant cost reductions and increased efficiency in legal processes.
Strategic Selection of Remote Proceedings: It is valuable for law firms, corporations and insurers to encourage early discussions to identify aspects of a case suitable for remote handling. Careful consideration of key depositions, hearings, and mediations can lead to informed decisions on which proceedings are best conducted in person and which can be effectively managed remotely.
Integrating Remote Analysis into Discovery Processes: It may be valuable to consider a comprehensive approach to discovery that incorporates a remote analysis component into case evaluation. Litigation guidelines from corporations and insurers have steadily begun to incorporate this required analysis. Developing a case profile that outlines the feasibility of conducting specific discovery tasks remotely and their associated benefits can enhance case budget and cost savings accuracy.
Collaborative Approach with the Court and Opposing Parties: It is important to foster open communication and collaboration with the court and opposing counsel to determine the suitability of remote hearings and trials. By proactively engaging in discussions and establishing clear guidelines, legal professionals can optimize the use of remote proceedings where appropriate.
Trials present unique issues: During Covid the use of remote bench and jury trials was essential. While the ease of a remote trial is compelling when done well, there are noticeable issues with jury attentiveness, privacy and confidentiality. Importantly, there can be a lack of cohesion with jurors who are not physically together for deliberations and for the entire trial experience. Lawyers need to connect with jurors and judges, and this is a challenge with remote trials. Jurors need to connect with one another during deliberations.
Mediations can be and have been successful in the remote world: A mediator present noted that there were a substantial number of successful mediations during Covid. Many in the group had similar positive experiences with remote mediations, including ease of logistics and cost savings to clients. This may be attributable to the expertise of the lawyers and the mediators. The opportunity for side discussion in remote mediation is helpful and a mediator can come in and out of the various rooms. It may be possible that virtual mediations are here to stay for a number of matters.
Ensuring Secure and Seamless Platforms: Prioritize the use of secure video conferencing and document-sharing platforms during litigation to safeguard sensitive information. Partnering with IT departments to ensure the reliability and security of remote technologies is crucial. The significance of robust cybersecurity measures in legal proceedings cannot be underestimated.
Continuous Training and Skill Development: Investment in ongoing training for attorneys, and support staff to enhance their proficiency in managing remote environments is valuable. Establishing guidelines, best practices, and etiquette for virtual proceedings can foster a more seamless transition to remote litigation.
Effective Witness Preparation: Recognize the impact of remote proceedings on witness testimonies and prepare witnesses accordingly. Equipping witnesses with the necessary tools and guidance to navigate virtual testimony, including the use of exhibits, is imperative.
Hybrid Models: Achieving Flexibility and Optimal Engagement
To balance the advantages of remote litigation with the benefits of in-person interactions, the exploration of hybrid litigation and trial models can offer a well-focused and cost-effective approach to legal proceedings:
Consider implementing hybrid discovery and trial models that integrate both in-person and remote elements. This approach can provide flexibility while preserving critical courtroom dynamics, ensuring effective communication and engagement for all parties involved.
Enhanced Professional Development Opportunities: Acknowledge the educational value of remote depositions and hearings for associates and paralegals. The accessibility of remote proceedings can offer a unique learning experience and facilitate professional growth within the legal community.
The evolution of remote litigation, mediation and trials has redefined the dynamics of the legal landscape. It is helpful to take a proactive and adaptable approach to legal proceedings. By leveraging the advantages of remote technology and use, legal professionals, corporations, and insurers can optimize efficiency, reduce costs, and enhance overall case management.
However, it is essential to remain cognizant of the unique challenges associated with remote proceedings and prioritize the implementation of robust security measures and comprehensive training initiatives.
By embracing hybrid models and fostering a culture of continuous learning, the legal community can effectively navigate the evolving terrain of litigation and trials in the digital era.
ONE TAKE AWAY — Perhaps one focus that applies to all – corporate, insurance and law firms – is to develop a means of tracking and evaluating remote work. One principal application would be to require metrics which capture time saved, cost savings and the substantive effect on closure rates on cases.