IMPROVISE, ADAPT, OVERCOME:
Practicing Law in a Pandemic
By Maggy Randels and Sheila Bilimoria
In the middle of March it felt like the world shut down. But people did not stop suffering injuries and people did not magically recover from those injuries just because a global pandemic took the world by storm. Our most powerful tool, jury trials, was effectively taken away, and we were left to figure out how to keep our cases moving and keep our law practices running while the world largely closed up, or at least slowed down. This pandemic has affected our everyday lives on the most basic of levels. And it is no different with a law practice. So, let’s take a look at some changes and impacts we have seen.
Of course, the postal service has not been running as smoothly as it was before to the global shutdown, but a meaningful amount of legal correspondence is still conducted through the mail. One impact we have seen is with certified mail. Green cards are often being returned without a date or signature. Some green cards have just not been returned at all. So, what do we do? In many instances, particularly with time limited demands, we have instead chosen to use statutory overnight delivery, that is, FedEx or UPS, instead of certified mail. Statutory overnight delivery is permissible under the statutes allowing for service by certified mail.
As for mail coming into the office, that process had to change as well. Even when mail is scanned and saved normally in the office, the pandemic meant having someone come in to check mail even if the office was closed. Some firms who did not previously scan mail started that process during COVID. Another practice that cropped up during the pandemic is email signatures saying something along the lines of:
“During the COVID-19 pandemic, our firm is working remotely. All of us are reachable by phone and email. Our firm has been making the transition to a paperless office. More often than not, mail is scanned and then shredded. If possible, during this period of disruption, please help us save a step by sending correspondence and documents electronically.”
Many firms have requested consent to electronic service only. Regardless of the procedure, all of us have to be diligent to make sure correspondence is received by those we send it to and to make sure we receive correspondence sent to us.
New Client Intake
During the pandemic, clients and lawyers alike have been wary of in-person contact. Of course, it is always ideal to meet a new client face-to-face if possible, but if either the client or the lawyer is uncomfortable, then we must come up with new solutions. The most obvious one is having an initial meeting via Zoom or another videoconferencing service. This has worked well as a substitute for an in-person meeting, but as things have opened back up, we have been trying to have more socially distanced in-person meetings, wearing masks, and following proper health protocols.
Other technology solutions from before the pandemic such as online contracts with signatures via DocuSign, AdobeSign, and the like, have also been very useful when we’ve been unable to meet clients in-person. One caveat to this is medical authorizations. Certain medical providers will require physical signatures instead of electronic signatures. In that case it may be necessary to send physical forms to the client to sign and return if they do not have the capability to print, sign, scan, and return at home.
Some of us had used remote technology for depositions before, particularly with witnesses far away when travel was not practical. But, prior to the pandemic, taking a deposition of a defendant driver or a defense expert virtually is likely not something we would have considered. In this brave new world, however, court reporting companies have their own virtual platforms for depositions, and virtual depositions are the norm, rather than the exception.
In fact, although in-person depositions have now resumed to some extent, they are somewhat challenging with all the safety precautions. For example, spending several hours talking through a mask is not the most pleasant experience. Often, conference rooms are too small to properly socially distance given the number of attendees (witness, court reporter, videographer, attorneys, etc.). Some witnesses will also insist on wearing masks for their testimony, even if social distancing can be observed. This can result in trouble understanding answers and may leave you with a less than ideal looking video to play at trial.
We’ve found, however, that as the pandemic has continued to last longer than any of us predicted, defense counsel has been more and more willing to conduct depositions by videoconference. Of course, virtual depositions present their own challenges. First, exhibits, particularly for a document heavy case, attorneys often want to show the witness multiple documents. Screen sharing and annotation on Zoom and the like work well, but not all witnesses will be comfortable with the technology. With a multi-page document, having the witness look through everything on the screen is not necessarily practical. If you prefer paper, especially if documents are Bates labeled, simply get a copy of the possible documents to the witness and refer to the documents by Bates label. You create a clean record and the witness can easily review all the documents. Another option is to utilize the services of a technology company. Many of them offer to screen share the exhibits for you so you do not have to worry about technology while focused on questioning.
Virtual depositions also present a unique challenge of who will be in the room with the witness. The options run the gamut. Sometimes, only the court reporter and videographer are in the room. Other times defense counsel will want to be in the room with their client-deponent but not allow plaintiff’s counsel to attend in person. In that scenario, it is important to be especially vigilant for coaching of the witness. Another note on coaching: Zoom does have a private chat feature. Make sure to mention in your stipulations that no one will use the private chat feature to communicate with the witness while questions are pending.
Preparing your witness for a virtual deposition is also paramount. We’ve all heard stories of witnesses trying to log into a Zoom deposition while driving or lying in bed during their deposition. The best way to prepare for this is to do your deposition prep via Zoom. That way the witness can learn how to mute Zoom or stop their screen share during breaks.
For quite some time during the initial period of the judicial emergency, there were very few hearings. At least in metro-Atlanta, many courts are still holding hearings only virtually. With the latest judicial emergency order, however, it is possible more hearings will be held in person in the coming months. But, Zoom hearings during the pandemic have been somewhat of a welcome surprise. For example, instead of having to sit through a long calendar in person, some courts are scheduling specific hearing times. Even if the court schedules a calendar, attorneys can turn off their video, mute their microphone, and accomplish other important tasks while waiting on their hearing to start.
As for the hearings themselves, we’ve found they work well. One difficult aspect is making eye contact with the judge. If the screen is set in gallery view, the judge may be to your right or left. That can make for an awkward camera angle because the attorney will be looking to the side instead of at the judge. One solution is to “pin” the judge’s video by selecting that Zoom option. Then, the only video on the screen will be the judge’s, and you’ll be looking straight into the camera, resulting in nice eye contact with the judge.
Another challenge with virtual hearings is screen sharing. It can often be helpful for virtual arguments to show documents via screen share that might otherwise be handed to the Court at an in-person hearing. But, not all courts allow screen share. Check with the clerk ahead of time so you can get documents to the court another way if screen share is not allowed. It is an unpleasant experience to have a well-prepared PowerPoint to show, only to find out the feature has been disabled by the Court.
One other note on hearings: think about lighting and background. In a courtroom, you would not want a judge to see a messy table, so consider whether you want the judge to see a messy desk in the background of a Zoom hearing. Possible solutions include virtual backgrounds (but think about a green screen) or simply sitting in an area with a plain background. Similarly, if using a laptop, test different camera angles to see which gives the best view.
It is possible that mediation via Zoom may be one of the pandemic creations that remains once things are somewhat back in order. Rather than forcing everyone to come together all day, clients can be comfortable at home or come into the office. Instead of sitting around all day, attorneys can turn off video until the mediator returns to the room. From what we have seen, virtual mediation can be just as successful as in-person mediation. One of the greatest benefits of Zoom mediations is that there is no excuse for the adjuster to not be present for the Zoom.
Michael Eschman, a mediator at Miles Mediation, says of virtual mediations: “Virtual mediation is a solution many of us didn’t know we needed before the pandemic. Maybe we were reticent to believe it could actually work, until we needed it to. I suspect we may all be developing virtual fatigue, and I look forward to more in-person mediations. But virtual mediation will continue to be a great solution, particularly in multi-party cases with logistical barriers.”
Following the lead of the Worker’s Compensation Board, many courts have proceeded with virtual bench trials for default and garnishment hearings. Similar to depositions, the best practice here is to provide marked exhibits to all: the judge, court reporter, opposing counsel, and witnesses, prior to the hearing. Preparation should mimic that of an in-person bench trial: redact what needs to be redacted, have certified documents, take videotaped doctor depositions and play them via screen share and prepare your witnesses for what to expect virtually.
Many of us have observed and even participated in a trend towards casualness because of Zoom hearings. And we can’t deny that we prefer being barefoot and not wearing heels during our Zoom hearings and may feel less nerves because we aren’t in the courtroom. But our clients are still nervous to testify. So even if it is “only” a virtual bench trial, it is still that client’s only day in court. It may be helpful to stand up when speaking to the court or witnesses. And dress for the part, including wearing your sensible trial heels.
The biggest lesson learned from migrating a lawyer’s love of paper to learning to love a mostly virtual practice has been adaptation. All of us have suffered Wi-Fi failures, witnesses not having access to a webcam, or delayed mail. The best way to overcome these hurdles is to prepare for them. Make sure all pleadings are served via eFile, email, and mail. Be understanding when technology fails us or the other side. Go the extra mile to ensure your client understands how to use Zoom. We all have to adapt with the times. There is no doubt trial lawyers are some of the best at adapting, but these times have been challenging for even the best of us. ●
ABOUT THE AUTHORS
Maggy Randels is a trial attorney at Shiver Hamilton, LLC. Her practice is devoted to catastrophic personal injury and wrongful death cases, including auto, trucking, and premises liability. She is a proud graduate of the University of Georgia School of Law and a member of the 2018-2019 GTLA LEAD Class. Maggy can be contacted by email at firstname.lastname@example.org or by phone at 404-593-0020.
Sheila Bilimoria is an attorney with the Casey Stevens Law Firm where she specializes in premises liability cases and representing injured persons in the state of Georgia. Ms. Bilimoria attended law school at Georgia State college of law, graduating cum laude with highest pro bono distinction for completing over 150 hours of pro bono work. Prior to joining Morgan & Morgan, Ms. Biimoria practiced employment discrimination and business litigation. In her free time, she enjoys baking, painting, and being involved in Big Brother Big Sister of Metro Atlanta.