Law Practice in the Time of COVID-19: How to Keep Cases Moving

The COVID-19 pandemic is nothing if not disruptive. Millions of Americans are “sheltering in place” in their homes, hospitals are slammed, businesses are shuttered, and most people in the country are heeding the call to “social distance” and “flatten the curve.” Public health terms many of us had never heard before are now part of our daily vocabulary. Many businesses cannot operate in the current climate and must pause.

For the legal profession, however, it is possible to adjust how we work so that we can continue making progress in our cases. Although some may be well-acquainted with virtual offices, for many attorneys, judges and their staff, not having physical access to an office, the courtroom, travel, clients and/or those we normally interact with, is a new experience. But thanks to technology and the helpful and much needed guidance of overworked IT departments, legal work can continue. Already, many courts have issued orders in response to COVID-19, establishing procedures and protocols for motions practice, hearings, and discovery. This piece reviews some of these orders and offers practice tips for staying productive. Orders are included as a reference but are subject to change due to the rapidly shifting nature of the COVID-19 pandemic. Please check court websites for further updates.

What are courts doing?

Many courts have issued orders in response to the developing COVID-19 crisis. For example, in the Western District of Washington, federal courthouses have closed for 30 days and all criminal initial appearances and detention hearings will be conducted via video/telephone conference.[1] Despite the physical closures, civil litigation can continue to “protect[] the safety and health of those involved in the proceedings, while preserving the legal rights of the accused and permitting public access.”[2] Some courthouses have consolidated and relocated all essential proceedings to another courthouse, limiting entrance to that courthouse to “[o]nly persons having official court business…[and] [m]embers of the press and public who have a legitimate need to observe an in-person hearing.”[3] The Administrative Office of Courts assembled a helpful webpage of all federal court orders on COVID-19.

On March 27, 2020, Congress passed the Coronavirus Aid Relief and the Economic Security Act (the “CARES” Act). “The Act authorized the Judicial Conference of the United States to provide authority to Chief District Judges to permit the conduct of certain criminal proceedings by video or audio conference.” Courts have acknowledged that “emergency conditions to the national emergency declared by the President under the National Emergencies Act (50 U.S.C. § 1601 et. seq.) with respect to COVID-19 have materially affected and will materially affect the functioning of federal courts generally.”[4]

On March 30, 2020, the Southern District of Texas issued General Order No. 2020-3 authorizing video and audio conferencing in criminal proceedings.[5] Remote appearances are authorized, provided counseled waiver is given on the record. To address this, the U.S. District Court for Texas also issued an Order on written waivers and appearances under the CARES Act[6] and also issued publicly available waiver forms in both English[7] and Spanish[8].

The Western District of Washington also issued an order following the CARES Act[9], which authorizes telephone conferencing for specific hearings. Notably, telephone conferencing is authorized “only with the consent of the defendant, or juvenile, after consultation with counsel.” Consent may be obtained on the record at the time of the relevant event and need not be in writing.

State courts have also responded. On March 20, 2020 the Washington Supreme Court issued an Amended order and provided that “[a]ll non-emergency civil matters shall be continued until after April 24, 2020 except those motions, actions on agreed orders, conferences, or other proceedings that can appropriately be conducted by telephone, video or other means that does not require in person attendance.” [10]

To address upcoming in-person court dates, King County District Court in Seattle, which handles over 100,000 cases per year, has (re)scheduled all out of custody criminal matters to dates after April 24, 2020. [11] All civil trials (except for Dependency and ITA cases) set prior to June 8, 2020 have been stricken and will be re-set to a date on or after June 8, 2020.[12] Pursuant to a March 27, 2020 order, all civil motions in King County Superior Court “shall be heard without oral argument unless specifically requested by the assigned judge. The parties may request oral argument, but the decision will be left to the assigned judge.” [13] If the court requests oral argument, it will be conducted by telephone, video, or other electronic means. King County has also closed civil and e-filing, but is allowing limited filing for essential criminal complaints, agreed criminal motions and time sensitive civil complaints where the statute of limitations will expire within 90 days, motions for the extension of judgment and other emergency motions that are time-sensitive in nature related to criminal and civil matters. [14]

With courthouses physically closed and limitations on travel in place, many people are questioning how this impacts impending case deadlines (particularly those involving depositions). There are numerous ways to keep civil cases moving forward despite the hurdles created by COVID-19.

How to keep cases moving

Cases need not and should not be stayed. We are in the midst of a highly disruptive pandemic, but important litigation can continue. Much of what we do happens “remotely.” Briefs are prepared remotely and filed via ECF. Long gone are days spent in warehouses reviewing paper copies of documents. In its place is electronic evidence – organized, reviewed, and produced online. Aspects of litigation that typically happen in-person – including depositions and hearings – can be conducted via video or telephone. Technology that has been available for some time can become the norm instead of the exception.

Use technology: Utilize video conferencing (e.g., Zoom), phone, and e-mail to stay connected.

Telephonic and video appearances are still possible: Court appearances, including status conferences, oral arguments and summary judgment hearings, can still occur via telephone or Webex.

[caption id="attachment_27964" align="aligncenter" width="538"> King County Superior Court Presiding Judge Sean P. O’Donnell presides over a summary judgment hearing on March 27, 2020 via Webex.[/caption]

For example, both the Second and the Seventh Circuits have announced they will be holding telephonic oral arguments. Similarly, the Northern District of Minnesota recently ordered a Case Management Conference to be held by telephone “[i]n recognition of current efforts locally and nationally to protect persons from unnecessary potential exposure to COVID-19…[and] to limit exposure due to travel by counsel and parties.”[15] This approach enables proceedings to continue and cases to move forward. Courts have also “urged parties to consider creative alternatives to conducting depositions in-person.”[16]

States are also issuing gubernatorial orders allowing Courts the flexibility to suspend rules that ordinarily prevent telephonic appearances. On March 27, 2020, California Governor Gavin Newson issued Executive Order N-38-20, “to enhance the authority of the Judicial Council and its Chairperson to issue emergency orders; to amend or adopt rules for court administration, practice, and procedure; and to take other action to respond to the emergency caused by COVID-19.”[17] The order suspends limitations on telephonic depositions, allows for remote depositions and electronic service of process, and provides the Judicial Branch with the discretion to adopt rules concerning civil or criminal procedure they may deem necessary to respond to the COVID-19 pandemic, while ensuring that the rules adopted “shall not be inconsistent with statute.”[18]

Use video depositions:

In response to COVID-19, courts across the country have issued orders allowing depositions to occur via remote means and without the presence of a court reporter in the same room as the witness.

Witnesses may be sworn in remotely: To mitigate the effects of COVID-19 on the court system, many courts have waived the requirement for physical oath-taking[19], allowing for remote swearing in of witnesses[20], provided the person taking the oath can both see and hear the witness.[21] For example, the Florida Supreme Court issued an order suspending the requirement that videographers and court reporters be in the presence of a witness to administer an oath, “so long as the notary or other qualified person can both see and hear the witness via audio-video communications.”[22] This approach is sensible and easily workable.

A preference for an in-person deposition should not be grounds to quash a deposition, particularly given the availability of remote depositions.[23]

Remote deposition testimony can be used at trial: Courts have also specifically addressed allowing use of testimony taken at remote depositions as evidence at trial.[24],[25] The Texas Supreme Court ordered that remote depositions may be used as evidence.[26]

Remote conferencing technologies exist: Companies like Veritext[27] and Golkow[28] allow for remote depositions and offer webinars on how to make it work.

Documents and exhibits should be exchanged in advance: If depositions occur remotely, the deposition protocol should address exchanging of exhibits so a witness can view them, and each party has access to the documents during the deposition.[29]

Witnesses can be prepared remotely: Witness or client prep can be done via Zoom or phone. E-mail or Kloud-send the witness preparation materials.

Proposed deposition protocols: If video depositions were not previously authorized in a case, consider proposing a stipulation or requesting a similar order allowing remote or telephonic depositions by video. A sample COVID-19 scheduling order that addresses deposition protocols can be found here.[30]

Meet and confer in good faith: Work with opposing counsel to develop joint proposals regarding discovery coordination. If a deadline extension is necessary, parties should work together to meet and confer in a good faith effort to reach agreement.  Plaintiffs and Defendants are both impacted by COVID-19 - and should share the twin goals of ensuring safety while also continuing to make progress in important litigation. As is clear from the many orders already entered by courts, judges share the same goals.

Stay safe and healthy: Honor your employees’ wishes to not come to work if they are at risk or have a loved one who is. Limit social engagements and practice social distancing. If you’re in a state with a shelter-in-place order and are still going to the office – go home and stay home. If you’re in a state without a shelter-in-place order and a need arises to actually meet in person (e.g., a court appearance), give people around you space, wash your hands, hold meetings in larger conference rooms to give everyone more space (if possible) to adhere to social distancing guidelines.

In these circumstances, productivity may vary greatly. Some may appreciate having the extra time not spent commuting while others may face distractions at home. Set and maintain a daily schedule for yourself, including a lunch break where you are disconnected for a defined period. Hold weekly team meetings to discuss case status and stay connected with your colleagues to keep assignments on track and maintain camaraderie.

Practice patience: People’s livelihoods and health are at risk. In addition to giving everyone more space, give everyone a little more grace; remember that each person in the system (regardless of their role) is a human being and has loved ones who are affected by this. The goal is balance. We are in the midst of a serious public health crisis and we don’t know how long it will last. Technology that did not exist just a few years ago now allows us to make progress in cases without endangering lives or imposing undue burdens on lawyers or their clients.

Check in with clients: Your clients will appreciate hearing from you. By checking in, clients know their case is still important. It’s okay to tell clients you don’t yet know how COVID will impact their case, but that you’ll keep them posted as things progress. Afterall, ABA Rule of Professional Conduct re: Communications 1.4(A)(3) requires lawyers to “keep the client reasonably informed about the status of the matter.” Let them know what’s happening with their case and that things may be subject to change. It won’t make you look bad if your client is later asked in a deposition how frequently they communicate with their attorneys and their response is that their attorney called to check in on them during the COVID-19 crisis.

Don’t forget the importance of morale: These are frightening times. Stay positive and keep as many of your routines as possible. If you have a colleague with whom you regularly take a coffee break, keep doing so (remotely). Digital happy hours with colleagues are also great morale boosters.

Moving forward: All the ramifications of COVID-19 are yet to be seen, but we have already learned some important practice tips moving forward:

• If you feel sick, stay home: As we learn about incubation periods and asymptomatic transmission, let’s carry that knowledge forward to prevent future outbreaks.
• Wash your hands: Perhaps the traditional handshake practice will disappear, but if it doesn’t, carry disinfecting wipes or hand sanitizer in your “brief” case. Briefs are mostly filed electronically these days, so there should be room in your bag.
• Clean your cell phone (regularly): Cell phones are big germ carriers. Consider using a disposable alcohol swab to disinfect your phone.[31]

And, most importantly, be KIND to each other, keep calm, and carry on.