Leading Lawyers Through Change

Lawyers - especially litigators, trial lawyers, and those who manage litigation - should prepare for takeoff and avoid being left behind.

Maxine, Judge Stevens’ clerk, vainly tried to maintain a somber expression but it kept slipping off her face, giving way to badly concealed glee. It was much harder to hide emotion on video conferences where all the parties had a close-up of your face. But she couldn’t help it; this was going to be good! Judge Stevens glared at the two lawyers, steam streaming from his ears.

“We repeatedly offered up the plaintiff to the defendants for deposition, your honor. They could have deposed her at any time.” The plaintiff’s lawyer, Jason Parks, looked grave and serene.

The parties – one badly injured plaintiff and five corporate defendants – were one week away from the close of discovery, the plaintiff had not been deposed and all the follow-on supplemental discovery requests and battles had not occurred. Instead, the target defendant filed a motion to extend the discovery deadline, and here they were.

The angry judge turned to the defense attorney, Douglas Dupree, who looked constipated and began waffling.

“We can’t schedule the deposition because it’s document intensive, complex, and with multiple parties. We need to wait until we can conduct it in person…because – you know – COVID,” he stammered. Maxine dropped her chin and studied her desk to hide a smile. Douglas said COVID the way Aladdin must have said, Open Sesame! The nervous defense lawyer waited for the magic password to work, but it had no effect on Judge Stevens.

“Counselor,” began the federal judge, obviously fighting to contain himself, “I have several cases pending before me right now that have multiple times the number of parties and make your document production look like a toddler’s hardcover book. They managed to depose all their parties. On time!” Judge Stevens banged his fist on his desk, making Douglas jump. He looked at Maxine with a pleading expression. She tilted her head and shrugged as if to say, You’re on your own, buddy.

The Litigator's Leadership Imperative

Like everyone else, lawyers were forced to adapt to new ways of working when the pandemic hit. Some aspects of the adjustment were easy because many of us were already mobile; working late hours from home, from airports, and hotels. But even then, there are certain activities many lawyers would argue, are best done in person, such as complex commercial negotiations, mediations, depositions, and certainly jury trials.

But half a year has passed since the first COVID-19 reports, and many jurisdictions are finding ways to get the business of law moving. Texas recently conducted the first civil jury trial in the country. Hennepin County, Minnesota, where I work, conducted its first socially distanced criminal jury trial. While it was marred by a COVD infection, that plane continued on its flight path, and more criminal jury trials are underway in Hennepin County, with civil jury trials expected to resume before the end of the year.

Most lawyers are familiar with the videotaped deposition, during which the witness, witness’s lawyer, cameraman, and court reporter are in the same room, with the camera focused solely on the witness while other attorneys participate remotely.

Some court reporting companies have had the technological capability to host virtual depositions for over a decade. A virtual deposition simulates an in-person deposition, but all parties, including the court reporter, can be remote. Documents can be called out, marked up, highlighted, and used in real time the same way as in an in-person depo. Each viewer can track the transcript, run real-time searches, mark up their draft, and see all or some of the participants at the click of the mouse. The lawyers may share their exhibits with each other before the depo, or only provide them to the court reporter, with some platforms capable of hosting hundreds of exhibits.

The Flight Has Left the Gate

“We can’t do that because of COVID”, or any similar phrase, has lost its magic in many venues where it used to unlock the door to an automatic stay or extension. Every litigator should fear being in Douglas’s position, where the attorneys in Judge Stevens’ other cases boarded the flight to the land of What’s Possible in our New Normal, while he was hanging out in the sky lounge thinking he had plenty of time.

Industries all around us are actively experimenting to find creative solutions at the intersection of what’s safe and what’s possible. Legal television shows like All Rise have fully transitioned their scripts to mirror video conference hearings happening all around the country. The world tuned in online recently as @BlackwellBurke founder, #JerryBlackwell, argued before the Minnesota Pardon Board to successfully secure the first posthumous pardon ever granted in Minnesota history, supported by the work of many other lawyers in the Firm and an army of organizations supporting the pardon of the late Max Mason (a highly publicized case in which a Black man was wrongfully convicted of raping a white woman in Duluth, MN in 1920).

How to Lead Your Pivot

As for Douglas, Judge Stevens gave him a very short extension and all the parties had to clear their calendars in a rush to complete the depositions.

The single most useful thing lawyers can do now is pivot from “we can’t do that because of the pandemic" to “we can do that despite the pandemic,” then look outside your firm or department to see how the lawyers on the plane got in the air. Better yet, be the lawyer who figures out how to board the flight first and settle comfortably in Seat 1A.

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