By: Donald L Swanson
Decades ago, there was one way to litigate: by warm-body witnesses, attorneys, judges, etc., present in the courtroom.
It’s not like anyone decided, “Hey . . . in-person is the best way.” It’s simply that, there was no other way.
But electronic communications intervened. And changes to the in-court system have followed suit, to limited degrees. For example:
- Attorneys appear in court hearings by telephone all the time; and
- Video depositions are commonly used in trials.
But inertia is a stubborn thing. And changes have been slow to happen: “what is” often becomes confused with “what ought to be,” when alternatives become available. For example:
- It took a long time for hearings-by-telephone to find common court usage, despite our long history of telephone technologies;
- Mediation participation by telephone or Skype found limited acceptance within the mediation community—“In-person is the only way,” has been a common and nearly-ubiquitous sentiment; and
- Court experiments with witnesses testifying live and from-a-distance are often a tough sell with attorneys.
Then, the pandemic hits. And nothing is the same! Everything changes—all at once! All of a sudden:
- Mediations by Zoom (I’m using “Zoom” as shorthand for all similar apps) are happening—everywhere; and
- Courts are jumping past the telephone audio and conducting hearings by Zoom—its happening everywhere; and
- Depositions by Zoom are being scheduled–everywhere.
These changes aren’t going away. Here’s why: because the technologies work!
It’s a whole new world. We need to let it be, as Paul McCartney says. And we need to let it go, when the old way doesn’t work, as Elsa counsels.
But a strong remnant of holding onto the past is still with us. It’s this: requiring a live-testimony witness to appear in-court with the judge, attorneys, etc., appearing in-person too.
The immediate result of this remnant, in today’s pandemic, is delay. It’s not about continuing a trial until next week. It’s continuing a trial for months-on-end, with further continuances likely until the pandemic breaks.
Our litigation system, in these United States, can’t let this happen. “Justice delayed is justice denied,” is a centuries-old legal maxim for good reason: because it is true!
And it’s not like a witness testifying via Zoom would be a complete and total break from our past. After all, the use of video depositions in trials is common—and problems with such in-court use (e.g., how to handle objections to portions of the testimony) are well-known and routinely handled.
Live testimony via Zoom will also have problems: e.g., How can an attorney and party work together during trial in a distancing environment? But all such problems can be handled (“where there’s a will, there’s a way”). With experience and in due time, all such problems will be well-known and routinely resolved.
Currently, however, such problems are, in most courts, unknown and imagined—and, therefore, viewed as insurmountable. It is only in doing that such problems will become known and solutions identified.
Impediment and a Prediction
One impediment to the use of live testimony via Zoom is a trial strategy. In any lawsuit, it’s common for one party to want the trial process expedited, while another wants delay. And opposing any process that hastens the trial can be a delay tactic.
Such a tactic happens . . . and there is nothing wrong with it.
But judges don’t want to gum up their future dockets by today’s delays. So, here’s guessing and predicting that:
- Judges will be searching for Zoom solutions to make live testimony happen in distancing contexts, and their search will be successful; and
- The use of Zoom technologies for trials with live testimony, in a distancing context, will become common and routine.
Change is happening, in these pandemic days, at warp speed. And litigation is no exception.
The Zoomification of litigation is under way—and will not be stopped.
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