Holland & Hart - Fiduciary Law Blog

Back in March, when we naively believed we’d be working from home for a few weeks and then things would be back to normal, much of our litigation came to a halt.  Our group had a number of trials continued, lawyers on all sides needed filing extensions as they adjusted to working remotely, and we wondered how we would conduct upcoming mediations and depositions when we couldn’t gather in person.  Now, nine long months later, we’ve learned that the law (like all of us) is remarkably adaptable and cases are proceeding more or less as usual.

Over the last nine months, the lawyers in the Trust & Estate Litigation group have participated in all manner of remote litigation proceedings.  We’ve been involved in multiple mediations, depositions, and court hearings, including a multiweek trial in the Denver Probate Court that was conducted entirely via WebEx.  Below are a few of our takeaways and tips from this ongoing experiment in remote litigation.

  1. Mediation still works. Before we’d done a number of them, we (and our clients) were concerned that remote mediation would not be as effective as in person mediation because you wouldn’t be able to build that all important connection and trust with the mediator over video conference.  Now, after having done a number of them, we are happy to report that remote mediations have been similarly as effective as in person mediations.  We’ve settled a number of cases this way and have heard from mediators that their settlement success rate hasn’t materially changed with the switch to remote mediation.
  2. Expect the unexpected. While the technology for remote proceedings has worked surprisingly well overall, there are bound to be some issues along with way.  Witnesses may have trouble connecting, participants may lose their audio or video signal in the middle of the proceedings, there may be issues displaying exhibits, and participants who aren’t actively speaking may forget to put themselves on mute.  When an issue inevitably comes up, stay calm and know that it happens to everyone.  In our experiences, other lawyers, mediators, and judges are very understanding and the proceedings quickly get back on track once the issue is resolved.
  3. Practice, practice, practice. While issues are bound to happen, the best way to minimize them is to practice before the proceeding.  Not only should the lawyers and paralegals participating in the proceeding familiarize themselves with the virtual platform, including how to display and navigate through exhibits, so should your clients and witnesses.  While it may seem shocking to those of us on Zoom calls all day, your clients and witnesses (especially lay witnesses) do not have the same experience litigating virtually and holding practice sessions with them will help your proceeding run more smoothly.  The first time your client accesses the virtual exhibit platform should not being during his deposition.  In our experience, court reporting services and court staff have been willing to host pre-deposition and pre-trial sessions to walk through the virtual platform and test participants’ connectivity, and we would encourage you to take advantage of those opportunities.
  4. You have options with exhibits. One of the trickier aspects of remote proceedings is working with exhibits.  There can be complications with displaying exhibits so that they are large enough to be legible while still being able to see the other participants (seeing the faces of your witness and the judge during questioning is important!), and it can also be cumbersome to effectively navigate the witness through an exhibit when he doesn’t have his own copy in front of him.  Thankfully, you should have a few options and can choose the one that works best for your and your proceeding.  For example, some court reporting services have a separate exhibit platform within the virtual deposition platform that you can use, you can display exhibits by sharing your screen, or you can consider mailing the witness paper copies in advance.  For our multiweek trial to the Denver Probate Court, the parties hired trial support specialists to display exhibits using Trial Director, and this was key to helping a long, complex trial run smoothly.
  5. Enjoy the cost savings. One of the benefits to your clients of remote proceedings is the potential for cost savings.  Among other things, remote proceedings eliminate the need for travel (both long distance and between your office and the court or deposition) and may be more efficient as video calls tend to not last any longer than is actually necessary.  The understanding that everyone is participating remotely may also eliminate the need to prepare motions for telephonic appearances or testimony.  Remote mediations also allow lawyers to more readily take advantage of the infamous downtime during mediation by working on other matters (and not billing the client whose case is being mediated) during breaks when the client wants to leave the virtual mediation room.

While I personally can’t wait to get back to holding the majority of our proceedings in person and the intangible benefits doing so provides (I’d much prefer to depose a key witness in person instead of over Zoom), the fact that we are able to litigate remotely so effectively is truly remarkable.  Many of these takeaways and tips will continue to be relevant when we are hopefully able to transition back to in person proceedings next year (you should always expect the unexpected at trial), and we should consider incorporating the best parts of remote proceedings into our practice going forward.