Litigating During COVID-19: What we’ve learned and what we can expect going forward.
November 3, 2020
By: Michael G. Erena
Litigants and litigators face unique challenges to effectively prosecute or defend ongoing or anticipated civil actions amid the pandemic. Now, more than seven months since the declaration of a national emergency in the U.S. and with new COVID-19 cases continuing to rise in many regions, flexibility and creativity remain critical to adapt to the evolving nature of one’s “day in court” during these unprecedented times.
1. Electronic Filing and Service
It may surprise some attorneys and non-attorneys that electronic filing and service by e-mail in active litigation was not ubiquitous in all regions of the country immediately before the pandemic. In Kentucky, for example, electronic filing was only made available for all 120 Kentucky counties in October 2015.1 Further, Kentucky’s civil rules have a specific “opt-in” if you prefer to skip the paper and instead send and receive all correspondence and filings by e-mail.2
Since its rollout, electronic filing in Kentucky state courts has been a welcome advance for many practitioners, however, unlike in federal courts, e-filing in Kentucky state courts is not mandatory. “Traditional” methods of filing in person with local clerk’s offices and service via mailed hard copies was (and still is) commonplace for members of the Kentucky Bar.
From the outset of the pandemic, Kentucky’s highest court has encouraged all practitioners to utilize Kentucky’s electronic court filing system to limit in-person interactions with court personnel. Furthermore, with many practitioners and staff working remotely during the pandemic, if email wasn’t already one’s preferred means of service and correspondence it has quickly become so over the last seven months out of necessity as sending and receiving hard copies by mail has become increasingly confounding.
In states like Kentucky where electronic filing and e-mail service may not be mandatory, the practical reality is that e-filing and e-mail are currently the best and most reliable means of service and communication. And while there may be strategic considerations during litigation to elect not to deliver certain information instantaneously by e-mail or electronic filing, in the future, practitioners and litigants should expect filing and correspondence to become almost exclusively digital due to the pandemic. Further, commensurate changes to the civil rules regarding service and filing in the digital age should, and likely will, follow in the pandemic’s aftermath.
2. Depositions, Mediations, and Meetings by Videoconference
The limitation on or prohibition of indoor, in-person gatherings to reduce transmission of COVID-19 between individuals in close physical proximity to one another, has been perhaps the most obvious disruption to necessary and previously-routine aspects of civil litigation.
The deposition, one of the most fundamental and ubiquitous tools in civil litigation, just so happens to hold the potential for being a super-spreading event for COVID-19: several people, confined within an indoor space, oftentimes for several hours, talking non-stop. Consequently, most practitioners have had to adapt how they conduct depositions. The various videoconferencing tools (Zoom, Teams, WebEx, RingCentral, etc.) have become household names for most individuals and most litigators have become adept at working within these digital confines to obtain necessary testimony from a witness without sitting in the same room with that individual. Further, most local rules of practice contemplated and approved videoconference depositions pre-pandemic.3
Videoconferencing has its obvious benefits for depositions. First, during the pandemic, it may be the only practicable option to safely conduct a deposition. Second, it potentially offers an economic advantage for clients when attorney and/or witness travel expenses can be avoided. Third, the videoconference format lends itself naturally and seamlessly to recording, for an instantly-transferrable and immediately-reviewable electronic video record.
While videoconferencing offers a high-quality alternative to traditional, in-person depositions, it is not without its drawbacks. Relying on videoconference software to accomplish a deposition introduces certain disruptions, complications, and confusion via inevitable technical difficulties and equipment failures that are simply not present during an in-person deposition. Designating and referencing exhibits takes more time before and during the deposition. Convenience issues aside, whether you are presenting your own client or witness for testimony, or taking testimony from another party or witness, there is simply no substitute for being in the room with someone, eye-to-eye to elicit or defend critical testimony.
As with depositions, mediations and meetings with clients, witnesses, co-counsel, and opposing counsel have now largely become digital endeavors, whether by phone or videoconference. And, while in most instances, digital means of communication will suffice, there are still some instances where the gravitas of the situation is best served by in-person communication.
Once in-person activities can resume with regularity, litigants and litigators should expect depositions, mediations, and litigation-related meetings to continue to be conducted via videoconference at a far greater rate than they were pre-pandemic. This should be expected as many practitioners and their clients have now learned first-hand of the benefits of videoconferencing and most have overcome any initial barriers to access by familiarizing themselves with the products out of necessity during the pandemic. The utility of videoconferencing technology will always have to be measured against the significance of the testimony or activity at hand. In the aftermath of the pandemic, certain in-person depositions, mediations, and meetings may transition to digital formats, however, one should not expect these crucial in-person events to disappear in the future.
3. Hearings, Trials, and (Virtual) Access to Courts
Out of necessity, most courts around the county closed their doors or severely limited physical access to the court due to the pandemic. Over the past months, the courts themselves (just like practitioners) have relied heavily on videoconferencing technology to accomplish many tasks, such as routine motion hour dockets, that were previously conducted in-person.
Civil jury trials have largely been continued indefinitely as the practical nightmare of empaneling a jury, presenting witnesses, and reaching a verdict in a timely manner during the pandemic has appeared nearly insurmountable. Kentucky’s most recent guidelines for court operations during the pandemic allowed for civil jury trials to resume in-person across the state on October 1, 2020.4
Recent guidance from public health officials regarding rising COVID-19 cases in Kentucky prompted the Supreme Court of Kentucky to issue amended precautions on October 29, 2020.5
Notably, Kentucky’s highest court is now encouraging, but not mandating, that county courts in “red-zones” (where the 7-day incidence of new COVID-19 cases in a region equals 25 or more cases per 100,000 people) enact extra precautions, the most significant of which is the postponement of all jury trials until the county returns to the “yellow zone” (i.e. a 7-day incidence of new COVID-19 cases of 10 or less cases per 100,000 people).6 As of October 30, 2020, 68 of Kentucky’s 120 counties (nearly 57%) are in the red zone, with 7-day incidence rates of 25 or more cases per 100,000 people; included among these red-zone counties are Kentucky’s two most populous metropolitan areas: Jefferson County and Fayette County.7
Based upon the most recent guidance from Kentucky’s highest court, civil litigants and litigators in Kentucky’s red-zone counties (a noted majority of Kentucky’s counties) should not expect to get a civil jury trial date scheduled in the near future or to have a currently-scheduled civil jury trial proceed in the near future.
It remains to be seen how long civil jury trials will be deferred. In certain areas of the county, at least in the civil arena, the possibility of virtual jury trials is being explored and tested.8 While all will agree that a virtual jury trial is far from anyone’s first choice, it may as a matter of practicality become the only way that courts can clear the backlog of cases that continues to mount.
If all parties and the presiding Court for a given civil action agree to proceed virtually, this may be the best option to expedite proceedings, albeit under a less-than ideal circumstances.
Much as videoconferencing has proved a useful, if imperfect, tool for depositions, mediations, and general conferences, we should expect courts who have familiarized themselves with the technology to potentially continue the use of this technology out of convenience even in the post-pandemic world. However, unless and until more practitioners and courts try and succeed with a full-blown virtual jury trial, expect most courts and practitioners to elect to wait until they can have the real thing in-person, even if it takes several years until one can have their actual day in court.
2 Kentucky Rules of Civil Procedure 5.02(2).
3 See, e.g. Kentucky Rules of Civil Procedure 30.02(4).
4 August 28, 2020 Amended Order of the Supreme Court of Kentucky In Re: Kentucky Court of Justice Response to COVID-19 Emergency: Expansion of Court Proceedings.
5 October 29, 2020 Guidelines for COVID Precautions in “Red Zones” as Cases Surge this Fall and Winter.
6 Id.; see also, https://govstatus.egov.com/kycovid19