With the COVID-19 emergency's end in April, more state and federal courts throughout the country are starting to address the future of remote proceedings. While few lawyers think judges and courts will permanently do away with remote proceedings, lawyers need to think about how to best advocate for their clients given the array of options and judicial positions on returning to in-person litigation.
There are cut-and-dried scenarios where it makes sense to appear remotely. If the dispute is low-dollar and low-risk, the lawyer should take advantage of remote proceedings and avoid the expense of travel and downtime in court. However, in most cases, when to appear remotely versus in-person requires the weighing of competing considerations.
(1) Cost-Effectiveness: In-person appearances can be a significant expense when considering preparation, travel, and time spent advocating. Most lawyers can advocate with the same degree of effectiveness remotely or in-person. A good lawyer will balance the cost of remote litigation with the strategic advantages of in-person litigation to determine what is most favorable for the client, and fits within the client's financial and litigation goals. For example, if the client has requested that the lawyer keep costs down, or to use cost-saving measures when possible, utilizing remote litigation when feasible may be a better option for that client.
(2) Type of Proceeding: Probably the most determinative part of the calculus is the type of appearance. Non-substantive hearings such as case management conferences, status hearings, or trial setting conferences may be better served with remote appearance. There may be little benefit to accrue travel time and expense when there is no substantive benefit. But, if it's a substantive appearance, the benefits of inperson litigation usually outweigh the benefits of remote litigation.
For instance, if there is a motion for summary judgment pending before the court, the lawyer should take all steps necessary to guarantee a favorable result. A motion for summary judgment usually has a voluminous record that counsel will have to refer to, often looking down. If the attorney appears remotely for the motion for summary judgment, the judge will likely be looking at the top of the attorney's head who is reviewing that record. The inability to maintain eye contact, use body language or non-verbal communication, and provide the judge with paper copies of the record could hinder the effectiveness of the oral argument.
An out-of-court example of the benefits of in-person substantive appearances is highlighted in a story from a colleague. They had the option to attend a deposition remotely or in-person, and opted to attend in-person. While answering a question, the deponent's answer and body language didn't match. The attorney pursued this, asking a series of follow- up questions that resulted in questioning that was great for the case. If the attorney had taken the deposition remotely, the mismatched body language may have been missed.
(3) Fostering Relationship-Building: There is also value in face-to-face contact with the adversary and the factfinder or neutral. In-person appearances are opportunities to change the tone of communication with the adversary, or establish rapport with the factfinder. A post-appearance conversation could also be the prime opportunity to discuss matters that wouldn't be discussed via email.
(4) Preferences of the Factfinder or Neutral: A lawyer should also consider the preference of the factfinder or neutral. For example, even though the COVID emergency is over, some judges still order parties to appear remotely regardless of the type of proceeding. If the lawyer appears in person, it could annoy the judge, which serves no benefit to the client and runs the risk that it could influence the factfinders' ultimate determination. In other cases, the factfinder may not be technologically savvy, and will have an unconscious bias against those that appear remotely, even for non-substantive proceedings. Before the first appearance in a matter, the attorney should always research the particular factfinders' preference, and plan accordingly.
To sum it up, below are the considerations when deciding which advocacy approach is best for the client:
- The pros and cons of remote litigation for the client;
- The pros and cons of in-person litigation for the client;
- The type and impact of the appearance or proceeding; and
- The impact of in-person versus remote on relationships and relationshipbuilding with the client, judge, opposing counsel, and other participants.
It is also important for lawyers and firms to continually monitor and stay up-to-date with the courts' preferences and standing orders as these may evolve over the coming months as judges, court personnel, and attorneys re-acclimate to in-person proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.