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Litigating in Troubled Times: The Virtual Shift of Our Industry

Anthony G. Atala | April 2, 2020

Never in our wildest dreams did we see this coming. Millions of Americans are feeling the immediate affects of the global COVID-19 pandemic. Many of our friends, family, and loved ones are dealing with the loss of a job, income, or worse, illness. Businesses across the country are struggling to continue on in the face of this virus’ threat, and the ever-increasing restrictions on societal movement and commerce.

Civil Litigation, which by its nature involves substantial personal interaction, has been immediately impacted by this outbreak. Mediations, hearings, depositions, document reviews, expert/client conferences and jury trials must all be handled differently now (and perhaps forever more). Law firms with strong remote technological capabilities have been able to continue zealous advocacy for their clients as many attorneys, paralegals, and support staff successfully transition to remote office settings. Some firms have prepared for this, but some have not.

In the span of less than two weeks, our firm has implemented remote offices for hundreds of attorneys, paralegals and assistants. Thankfully, there are many technological resources available to law firms and clients which enable work to continue as seamlessly as possible. Cellular phones and paperless files have never been more important. And, software applications like LoopUp and Zoom have -- overnight -- become the new normal.

Here are a few ways that attorneys and court systems have continued to operate under these difficult circumstances:

Hearings
The Florida Supreme Court suspended all civil trials through April 17, 2020, and, more recently, Governor Ron DeSantis issued a shelter-in-place order for the State of Florida through April 30, 2020. Suspending civil trials was necessary to flatten the pandemic’s curve due to the large number of people who show up for jury duty and are required to stay in close proximity with one another during a trial. Some courts remain open for hearings, while others are allowing attorneys to appear telephonically via CourtCall, a platform which allows for remote court appearances. Additionally, many judges are now using Zoom, video conferencing software that allows multiple people to appear simultaneously. Its capabilities even allow for a virtual background. For example, a judge in Miami-Dade County recently held Motion Calendar from his home office wearing his robe and using a courtroom backdrop.

Mediations
Many attorneys and litigants are still moving forward with mediations which can be very difficult to re-schedule, especially in multi-party cases, since they can successfully be run via video or telephonic conferencing. Our attorneys now proceed with opening statements via video conferencing, and following opening remarks, each side proceeds to their respective virtual “caucus rooms.” The mediator calls in and out of each virtual room while negotiations continue. For larger cases, a “main conference room” is sometime left open so that all parties can reconvene if necessary. This can all be accomplished even though each participant is at a different location.

Depositions and Examinations Under Oath
The Florida Supreme Court issued Administrative Order (AOSC20-16) authorizing Emergency Procedures for the Administering of Oaths Via Remote Audio-Video Communication Equipment due to COVID-19. The Order allows for witnesses and deponents to have their depositions taken from home or without anyone present, and our team has already begun taking advantage of this. Witnesses can appear at a court reporter’s office or via any electronic device that has a camera and a microphone (i.e., smartphone, tablet, computer or laptop), and the parties must have high-speed internet. The witness is sworn in by the court reporter, and the attorney can remotely question the witness just as he or she would in a live deposition or statement under oath. There are even options in certain platforms, such as Zoom, to share photos, documents, or exhibits that will be marked at the deposition. We have found that it is critical for counsel to create an orderly exchange of documents during the remote deposition, especially for those depositions that are exhibit intensive.

Expert/Client Conferences

Video conferencing is also proving to be extremely effective for expert and client meetings. Using an application that allows for the sharing of records is critical, as is being able to see one another’s face, which often provides for more effective communication and engagement. Additionally, thanks to a recent change in the Notaries Public Statute Chapter 117, releases and discovery responses that require notarized signatures can now be accomplished remotely. The statute was amended on January 1, 2020 to add a Part II--Online Notarizations, which now allows a notary to be physically separate from the principal when undertaking notarial acts by using audio visual equipment and other means. This statute change could not have come at a better time.

In the face of the physical and economic threat presented by COVID-19, we are fortunate to live in an age where technological advancements allow for cases to be evaluated, litigated, mediated (and perhaps one day be tried) from remote locations. Even in these troubled times, “the show must go on!”

Our motto is “You Define Success…Together, We Achieve It.” While the means by which success is achieved may be rapidly changing, our team is committed to evolving and adapting to continue serving our clients.

We wish you and your loved ones our very best during this challenging time.


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