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Adapting to Remote Proceedings in the Post-Pandemic Era

July 19, 2021The National Law Journal

Patterson Belknap Partners Michelle Bufano and Joshua Kipnees and Associate Ian Kerr authored a three-part series in The National Law Journal concerning adapting to remote proceedings in the Post-Pandemic Era. Part I discusses pre-trial proceedings, Part II covers depositions, and Part III covers trials.

Part I: Pre-Trial Proceedings

There is little doubt that remote litigation alternatives are here to stay. But the precise contours of the new status quo remain unclear.

The country has started to return to pre-pandemic ways after nearly a year and a half of remote work. For litigators, this means that courts are reopening and holding regular in-person proceedings—and come September, many attorneys will formally return to their offices. But to what extent will the virtual tools so essential to pandemic practice remain essential to the litigation process moving forward?

To continue reading Part I, please click here.

Part II: Depositions

Virtual depositions are destined to remain a fixture in the post-COVID era, but must also be balanced against the return of in-person depositions.

The option to conduct depositions remotely is codified in the federal rules, but before last year, it was used sparingly. One pandemic later, litigators around the country now have over a year’s worth of experience taking depositions almost exclusively through Zoom or other remote platforms. Virtual depositions are destined to remain a fixture in the post-COVID era, but must also be balanced against the return of in-person depositions. Litigants’ growing reliance on remote capabilities therefore presents potential challenges for deposition practice going forward, and there are several ways that federal courts may seek to address them.

To continue reading Part II, please click here.

Part III: Trials

By providing practitioners and judges with clear and uniform guidance, and developing a set of shared expectations across the country, the federal court system could better incorporate virtual bench trials in a manner that captures efficiencies and limits unwanted transaction costs.

In this series, we have explored the future of remote proceedings in the post-pandemic era and
the extent to which existing legal frameworks and party preferences might complicate their incorporation into the litigation process. We observed that when the litigation process leaves it in the hands of the parties to decide whether to conduct a proceeding in person or virtually, there are likely transaction costs in negotiating and resolving that issue that can undercut whatever efficiencies might be gained from increased reliance on remote alternatives.

To continue reading Part III, please click here