What Is Going To Stick: Post-2020 Changes In Litigation
Kevin-Khristián Cosgriff Hernández
Litigation Consultant with extensive experience in designing and conducting focus groups, mock trials, witness preparation, and jury selection.
By: Andrew Alvarado and Kevin-Khristián Cosgriff Hernández, Ph.D.
Since the pandemic began last year, courts, law firms, and the various supporting vendors have adjusted to meet the needs of their clients. In the process, numerous lessons were learned, and new methods to serve clients in the face of the pandemic were created and refined. Given the current state of affairs it is difficult to determine when things will return to “normal,” or indeed what that new normal will look like.
While some focus has been given to those lessons and how the process is impacted by the new virtual medium, this piece takes a slightly nuanced approach and presents observations of how the industry shifted from the vantage point of an attorney and a litigation consultant[i]. In the plainest of terms, one might think of it as: given the considerable adjustments and changes to the legal system in 2020, what is going to stick?
Before delving into observations, it is helpful to review each of the author’s vantage points, as they provide unique positions in answering this question. From an attorney’s perspective, almost every part of the litigation process – from the initial client consultation, to discovery, to presenting arguments to the court and ultimately to the jury – has had to change and adapt to a new virtual environment. The pandemic has forced almost every industry to switch, at least temporarily, to a virtual business model. Just as other industries have realized that working virtually can actually increase efficiency and are evaluating how to change their business model accordingly, there is an opportunity for attorneys to change their historical business model and processes to take advantage of opportunities to save time and costs throughout the litigation process.
From the perspective of a litigation consultant, the primary focus is on how the audience (jurors) receive the message. This is not to suggest that the medium is the message[ii]. Instead, part of a litigation consultant’s focus is on how to assist their client to effectively communicate given the parameters of the medium. With this in mind, what we communicate is influenced by where, to whom, and how we attempt to get our client’s message across. The following reviews various areas where we see potential sustainability for meeting the needs of our clients moving forward.
Online Depositions
Jurors live in a world where perception is reality. Technical problems, distracting backdrops, disruptions at the home/ home office, and unprofessional appearances negatively affect a witness’s credibility. From a consultant’s perspective we work to minimize the ‘noise’, while improving the perceived credibility of a witness. However, since fall 2020, mock jurors and juries continue to watch witnesses and attorneys struggle with noise and technical difficulties as they seek to effectively communicate their message. These aspects are complicated by witnesses who work in industries that are inherently more blue-collar. Relying on a witness to manage their technology, prepare their background, come dressed appropriately, find childcare solutions, and manage distractions / disruptions is a significant burden to place on any individual managing work and domestic responsibilities. These are magnified for potential witnesses who do not utilize said technology on an everyday basis, let alone have the means to invest in the technology and components needed to produce a satisfactory deposition.
Another trend that we are observing is how serious consideration is being given to cases where depositions could be done remotely online. Various online videoconferencing platforms have opened up the industry to taking depositions of less significant witnesses, or those that are prohibited from traveling at this time.
Similarly, there is a trend toward deposing expert witnesses remotely rather than in person. In certain areas of law where expert testimony is a crucial and necessary aspect of the case, experts were regularly required to travel to attend depositions in person, and the client was on the hook for their travel time, lodging, and per diem. By using videoconferencing technology, attorneys and their clients can avoid those expenses, and as that technology continues to evolve and improve, and attorneys and their experts become more familiar and comfortable taking depositions remotely, there is a significant opportunity to save time and costs. At a minimum, attorneys can remotely prepare their out-of-state witnesses and experts to testify, saving on travel costs and time for that preparation.
???????????However, moving depositions online is not as simple as turning on the computer and clicking the link to the videoconference. A prevailing lesson gleaned from mock trials and post-trial interviews is that both sides better be prepared to put on their best case – potential jurors will give no quarter to any witness. Trial teams must now, more than ever, properly plan and train a witness to mitigate the aforementioned challenges as they work toward putting up witnesses that communicate effectively and with credibility.
While it was not unheard of, although not particularly common, for attorneys to present videotaped testimony at trial, that practice has changed significantly in terms of process and frequency. Given the limitations imposed by the pandemic, rather than have videographers attend depositions in person using their own professional equipment, several vendors now offer to record the deposition directly through the video conferencing platform.
???????????That practice poses several considerations, such as should the videographer record only the witness and the exhibits vs. all of the participants, what is an appropriate background, how should audio be managed, what lighting and camera angle provide the best view, should questions come from a disembodied voices off-screen, or record all the parties “on-screen.” These decisions often involve more than just whether the attorney feels like donning their formal attire on that particular day.
???????????Given the uncertainty regarding witness availability during COVID, and fluctuations in court rules, attorneys should consider that there is an increased chance that witness testimony will ultimately be presented through prerecorded video depositions. Accordingly, attorneys should treat these videotaped depositions not just as a discovery exercise, but with the intent that the deposition may be presented at trial in lieu of live direct or cross examination, and prepare their witnesses and tailor their questions accordingly.
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Streaming Pre-Trial Research Projects
Since the fall of 2020, some courts have moved forward with proceedings and trials. As part of the trial preparation process trial teams forged ahead with research exercises such as focus groups and mock trials to test themes, witnesses, and arguments. With streaming capabilities, fewer trial team members need to physically attend pre-trial research exercises. Fewer attendees physically present at focus groups/ mock trials provide time and cost saving measures. Steven Caloiaro, of Dickinson Wright, provided the following insights when asked about his experience with the hybrid model of pre-trial research:
"It was hugely beneficial to be able to remotely attend the pre-trial focus groups remotely. Our case was unique in that there was joint representation across four law firms, approximately seven different offices spanning four time zones. The technology utilized in presenting the focus groups was smooth and effective giving us all of the benefits of attending in person while providing the client with significant costs savings."
However, trial teams have had to find and utilize tools that facilitate the collaboration that is inherently part of in-person projects to assist teams in the strategic development of case themes and arguments. Should this challenge present itself, trial teams should take time to locate an online tool that facilitates their collaborative process as opposed to initiating technology with the presumption that it will resolve this issue.
Remote Trial Support
Some courtrooms are limiting the number of team members present in the courtroom. Limits on the number of personnel present in the courtroom creates challenges when there are time constraints associated with the review of supplemental juror questionnaires, time for voir dire and other activities associated with jury selection. It also generates significant challenges when a shadow jury is an appropriate exercise for the case. Considering these constraints, trial teams are working with remote team members to review supplemental juror questionnaires, conduct research on the jury panel and in running remote shadow juries. These activities underscore the importance of having secure internet connections while working closely with the court to stream feeds of trial proceedings when needed well in advance to the commencement of trial.
Similar to so many other industries, the business and activities of litigation changed because of the pandemic. Utilizing technology broadened options for firms as they prepare their cases for trial. These options created opportunities to meet the demands of trial, but not without consideration as to new challenges and the nuances of communicating online.
Moving forward, the industry will likely continue to utilize remote/virtual procedures. Rather than fight that tide, lawyers, their clients, and their consultants should embrace the new technology, adapt their practices accordingly, and take advantages of the opportunities for increased efficiency and cost savings.
For More Information:
Andrew J. Alvarado is an associate in Dickinson Wright’s Austin office, and is licensed to practice law in both Arizona and Texas. He can be reached at 512.770.4225 or [email protected]
Kevin-Khristián Cosgriff Hernández. Ph.D. is a partner at Delphi Litigation Strategies, and based out of Austin, Texas. Delphi is a full-service litigation consulting firm specializing in complex civil litigation. He can be reached at 216.798.7516 or [email protected]
[i] https://medium.com/@obtaineudaimonia/the-medium-is-the-message-by-marshall-mcluhan-8b5d0a9d426b