Section Review

In response to the judiciary’s request for feedback from the bar, the Complex Commercial Litigation Section Council hosted a panel to discuss the future of remote proceedings in the commonwealth as we emerge from the pandemic. Hon. Brian A. Davis moderated the panel, which consisted of experienced commercial litigators Kendra Berardi (Robinson+Cole), Keith Carroll (Mintz Levin), Bruce Falby (DLA Piper), Giselle Joffre (Foley Hoag) and Danielle Andrews Long (Robinson+Cole). The council also solicited feedback from council members and from others in the bar. Below is a summary of the panel discussion and additional attorney feedback received by the council. 

Advantages Of Remote Proceedings

The panel and other members of the bar unanimously report that a primary advantage of remote proceedings is increased efficiency for lawyers and clients. Remote proceedings have also improved clients’ access to and interest in the courts. For routine scheduling and status conferences, remote hearings save an unnecessary trip. Though some attorneys still prefer in-person hearings for significant motions like dispositive motions, the broad consensus is that remote hearings improved appellate arguments and motion hearings because they are more interactive, litigants and the judges can see each other better, the style is more conversational, and argument tends to focus on the merits quickly. 

Disadvantages of Remote Proceedings

Many report that having less control over witnesses is a disadvantage of remote proceedings: the examining lawyer cannot see what the witness is doing with his hands or whether the witness is looking at documents or messages off screen. The lack of personal interaction is also a challenge. Some say that remote proceedings are less helpful for evidentiary hearings and trials because live witnesses are more impactful. Others report that they lose something by not being in the courtroom, and that they prefer to be in the courtroom for “bigger events” like trial, evidentiary hearings and dispositive motions. Many report that technical failures are a disadvantage, especially when attorneys and witnesses do not have professional IT help at home. Another technical issue arises when witnesses appear via mobile phone, with associated signal problems or inability to view exhibits while testifying. Some report that it feels “clunky” to use Zoom for trial, and a remote trial lacks drama. The physical courtroom inspires gravitas that is missing over Zoom. And when layered on top of everything else that trial lawyers worry about, preparing for remote proceedings leads to more missteps than one might be expect, which can throw a trial lawyer off her game. Preparing for remote trials takes more time, and internal and external deadlines need to adjust accordingly. 

Clients

While some lawyers miss the opportunity to connect with the client in person at hearings or depositions, overall, their clients interact with the remote format much better. Clients can see exhibits on screen and see exactly what the witness sees. Client interest and attendance at court has dramatically increased with remote proceedings. With in-person hearings, if the client is too far away or the time commitment too daunting, the client might attend less often. With remote hearings, clients have increased access to the courts, and they very much like the ability to attend Zoom hearings. Clients can attend to their regular business and log in when convenient, instead of taking an entire day to travel and attend in person. 

While it is nice to connect with the client at in-person hearings, that is not necessarily quality time with the client. It is often a stressful time. Client contact does not need to be at a deposition or hearing, and attorneys can make other opportunities for client contact, such as client dinners. Clients appreciate not having to travel and appear at depositions and in court. 

While clients do pay attention to travel time and billing, clients defer to judges and attorneys and are not necessarily pressuring attorneys to have remote proceedings for cost-saving reasons. If a judge prefers a proceeding to be live, then the client recognizes that it would be a disadvantage to request a remote hearing. For depositions, clients might prefer remote depositions for cost savings, but recognize that cost savings are balanced against disadvantages of remote depositions. With government interviews, clients rely on their attorney’s judgment of whether it would be an advantage or disadvantage to be in the same room. 

Civility And Interactions With Opposing Counsel

Many attorneys report that they miss interaction with opposing counsel because those interactions can facilitate better working relationships and sometimes settlement. Losing those interactions with opposing counsel is a bigger loss than losing client interaction at hearings, as attorneys can schedule client dinners to make up for that lost contact. One attorney wonders if she has had more trials recently because she is not interacting with opposing counsel as much. Just as opposing counsel can sometimes be more aggressive over email while more congenial when on the phone, opposing counsel can be more aggressive or distant over Zoom compared to in person. Another attorney observes that remote proceedings can lead to more civility because attorneys are more careful not to interrupt during a remote proceeding.
 

Professional Development Of Junior Attorneys

Junior attorneys can get more substantive experience with remote proceedings. For example, while it may not be cost-effective to have a junior attorney assigned to an entire in-person trial, the remote trial allows the flexibility to have more junior attorneys take certain witnesses without having to be present for the entire trial. Junior attorneys can take a more active role instead of observing. Junior attorneys are also getting more experience arguing motions over Zoom, with the supervising attorney appearing on screen and emailing or messaging tips. Additionally, for large trials with a 20-person trial prep team, the associates appreciate being able to connect remotely and see the results of their hard work, which they would not be able to do with in-person trials. The opportunities to take a more meaningful role at trials and hearings, however, can be offset by the lack of in-person mentoring and training of junior attorneys. Part of the learning experience is being able to pop into someone’s office and ask for help, which is lost. A junior attorney also notes that it is equally important for junior attorneys to have the experience of actually appearing in the courthouse before a judge, and she hopes that is not lost as remote hearings become ingrained. 

Efficiency

Efficiency is the primary advantage of remote proceedings. Attorneys can be in different courts or different jurisdictions on the same day, which allows an individual attorney to handle more cases. Attorneys can also work on other matters, appear in court, then go back to working on other matters, which they are less able to do while traveling to hearings. Attorneys can take more cases across the country, and they do not have to fly to and from a faraway location for a two-hour argument. Another efficiency is that attorneys do not have to show up for motion hearings at 2 p.m. and wait until 4 p.m. to be called; they can instead log in at a scheduled time, or they can log in and work on other matters while they wait to be called. Remote proceedings have also facilitated trial testimony for witnesses located in other countries. And of course, they have cut down on travel time on client bills. 

Economics

Some attorneys report that the economic effect of remote proceedings on their practice is neutral, while others report a positive economic effect. For example, attorneys who can take on more cases because they can be in more jurisdictions at once report a positive economic effect on their practices. Attorneys can jump from Zoom to Zoom, and they cannot fly from place to place as easily. This allows them to be more productive and more profitable. Another attorney notes that if she and the client are on the fence about taking a deposition, they might choose not to take the deposition if they have to fly to another state, but if the deposition is remote, they might choose to take it. Some firms report reduced expenses while billing the same number of hours, but that is not necessarily a result of remote proceedings; it might instead be caused by remote working more generally. 

Quality Of Life

Most attorneys report that practicing law remotely has improved their quality of life. Attorneys can spend more time with spouses and children because they can be home with family as soon as the deposition or hearing ends. Parents are more able to be home to pick up children from school or put them to bed. Especially with nonbillable civic activities that happen in the evenings, such as committees or board meetings, Zoom allows the attorney to attend from the home office and then have dinner with family. There is also a mental health boost to working from the comfort of one’s home and eliminating the stress of traffic and getting to court on time. Additionally, the time savings allow attorneys to participate in more activities. One attorney reports that he was able to visit colleges with his high-schooler while taking time out periodically for remote hearings on the road; in the past, he would have had to reschedule the hearings or cancel the trip. It is a great benefit to be able to appear in multiple places, from anywhere.

Differences Across Courts

Attorneys report different preferences across jurisdictions and courts, and that even within the same court, some judges will have different preferences. Some judges prefer having routine scheduling and status conferences all on Zoom, and other judges still prefer in-person proceedings even for those small matters. Some attorneys note that it is helpful to have uniformity in pretrial orders. Judges sometimes have different technology preferences, where one judge prefers a certain technology when he is at home and another judge uses a certain technology while at the courthouse. Attorneys express a preference for uniformity within a particular court system. For example, it would be nice to know that if one is in the commonwealth, the hearing will be on Zoom rather than Teams or some other platform. 

Hybrid Proceedings

Hybrid proceedings — where some participants are in person while others are remote — can put enormous pressure on attorneys to appear in person even if they might prefer remote. Some attorneys report that they feel like they lose a strategic advantage by not being in person. They do not want to be the one sitting at home while everyone else is in person. If it gives the in-person participants an unfair advantage, the attorneys will get in the car and go if the other side is going. To counter this pressure, another state court will go fully remote if any party objects to the hybrid hearing because the court does not want to force any party to do anything uncomfortable. Additionally, technology in the courts can be a challenge because the court needs more than one camera in the courtroom for hybrid hearings. 

Depositions, Trials And Witnesses

Examining witnesses remotely at trial or deposition is a challenge. Attorneys have less control over the witness. Attorneys report that they have a much better feel for the witness when they see the witness in person and are better able to observe body language. It is also important to see what the witness is doing with his hands, and if he is looking at documents or messages off screen. 

Because of this, most attorneys report that they prefer defending depositions over taking them remotely. Some comment that remote depositions work well for neutral or third-party witnesses, but a lot is lost when examining party witnesses. It is easier, however, to control documents using the share screen function. 

For trials, it is also helpful to see attorneys and parties in person, and to see what people are doing in the courtroom. One attorney also notes that she likes the judge to see how prepared she is compared to the other side. Another attorney comments that court is like a performance on stage, and that Zoom trials lose the drama. Those kinds of intangibles are lost in remote proceedings. Others report that Zoom feels “clunky” for trial and leads to more missteps than you might expect, which can throw off trial attorneys. 

Remote hearings might be easier for lawyers at firms with easy access to a conference room or other Zoom-appropriate space. It may be harder for solo practitioners to find good space and appropriate technology for Zoom hearings and trials. That disparity is likely more pronounced in evidentiary hearings and trials. 

Remote trials require more preparation. Attorneys need to anticipate a little more and be hyper-organized. If a trial is document-intensive, it can be more costly because the trial team has to organize the documents, download and upload them, and have hard copies sent to the court, parties and witnesses. One attorney reports that she is unsure if that increased cost is balanced with less travel time. Attorneys report pushing out internal and external pretrial deadlines so they can have all exhibits done far ahead of time and can focus the last few weeks on witness preparation and motions in limine. 

Settlement Conferences And Mediations

Some attorneys report having settled cases via mediation over Zoom, but it is harder. The intangible benefits of being in the same room with the people involved in trying to resolve a lawsuit are lost when settlement conferences and mediations are held remotely. Zoom’s virtual breakout rooms simulate the physical setup at mediation, which is helpful. When the mediator returns to a Zoom breakout room, however, she cannot knock before entering, so attorneys have to be careful about conversations and screen sharing with the client during breakout sessions.

Appellate Arguments

Attorneys report that they prefer Zoom for appellate arguments because the argument is more conversational and interactive. Remote appellate arguments have less “speechifying,” and fewer attempts to orate and impress. It allows the arguing attorney to focus better. The panel is right in front of the attorney, and the attorney can see the panel more clearly. It is easier to read the judges close up, and the argument becomes more of a conversation. It is also easier to have the appellate record at one’s fingertips. In certain circuits where judges ask questions in turn rather than a free-for-all, a single judge cannot dominate the proceeding. It allows for a more orderly and fuller presentation by counsel and an articulation of a wider range of views by the bench. 

Transcripts

A few attorneys commented that preservation of the record is made more difficult by remote proceedings. For whatever reason, some courthouses have been unable to provide clean audio to the office of transcription services. 

Hopes For The Future Of Remote Proceedings

Nearly all attorneys prefer remote proceedings for routine motion hearings and conferences, as the efficiency outweighs any benefit of in-person appearances. Less consensus emerges about dispositive motions, with some attorneys preferring remote proceedings and others preferring in person. For both jury and jury-waived trials, the broader consensus is that in-person trials are better than remote trials because of the issues of control over witnesses and the courtroom. In a pinch, attorneys can do trials over Zoom, but an in-person trial is preferred. 

Nearly all attorneys report that they appreciate having the option, and, ideally, in post-pandemic times, the decision should be made on a case-by-case basis, with attorney agreement wherever possible. Some trials might be better suited to Zoom than others. If a court can proceed either way, it should ask the attorneys. For routine things and smaller motions, Zoom should be presumed. For dispositive motions and trials, remote proceedings should be an option and the decision made on a case-by-case basis, but nobody should be able to force anyone into a virtual hearing if they want an in-person hearing. The presumption should be that trials are live, but that parties should be able to opt in to a Zoom trial, much like parties can opt in to a jury-waived trial. One attorney suggests that those who opt in will lead the way, and eventually remote jury trials may become commonplace. 

For appeals, attorneys would like the court to set up both a Zoom docket and a live docket and let the parties choose. Hybrid is not recommended or preferred for appellate argument. 

Attorneys also report that uniformity among courts would be helpful. If witnesses are to appear remotely, there should be a baseline technology requirement for all witnesses; for example, witnesses should not be allowed to testify over Zoom on their phone with a spotty connection and the phone ringing in the middle of the witness’ testimony. 

Overall, with some reservations about evidentiary hearings and trials, the panel and those informally surveyed are positive about remote proceedings and see a place for them in the future as we emerge from the pandemic.