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For litigators, COVID-19 has changed everything

Depositions and mediations suddenly look a lot different than they did before the time of coronavirus—and those are just the ones that are still taking place at all. Handshaking is out. To the extent possible, participants are dialing in by telephone or videoconference rather than showing up in person. The ones who do show up are checking beforehand to make sure that they aren’t showing any symptoms of the virus and practicing good social distancing.

“This is the first one I’ve had [since most courtroom operations were suspended on March 13], and we agreed to excuse all the clients and let them participate by telephone and we have just the attorneys and the mediator,” Allen Smith of Hedrick Gardner in Charlotte said during a break in a mediation he was attending on March 17. “But my firm and I are taking the approach that if an opposing party says they’re uncomfortable [proceeding as scheduled], then we’re not going to press them, because we’re probably going to be in the same boat with our clients at some point.”

Smith said that some engagements had already been postponed, but he was still planning to press on with some depositions scheduled a few days later. Even as courtroom proceedings have ground to a halt, for litigators work is for now carrying on—slowly, fitfully, and very differently than before. (Some arbitration agencies have managed to spy a business opportunity in this and have been reaching out to attorneys to see if they might like to try resolving their disputes in arbitration instead.)

The fact that many lawyers are in an age group that puts them at heightened risk from COVID-19 has certainly contributed to the profession taking this with a great deal of seriousness. Almost overnight, the pandemic has changed the legal profession in a variety of ways. What remains to be seen is how the experience might end up continuing to influence the legal profession long after the danger has passed.

Depositions from a distance

There are a lot of different roles that need to be filled at a deposition, and if any of the players are missing, it can shut down the whole production. Most obvious, of course, are the witnesses themselves, many of whom are finding themselves unable to show up for an in-person deposition right now, whether because of illness, fear of illness, or an inability to secure child care at a time when public schools are closed across the state.

That, at least, can be resolved through videoconferencing. Many attorneys reported that they’ve already altered plans to begin deposing witnesses via Skype or similar technology, or even just an old-fashioned telephone. But even if that solves one problem, it opens up another because the notaries who swear in those witnesses are not, under state law, allowed to swear anyone in remotely, and so difficulties in wrangling up court reporters can create another bottleneck slowing up depositions.

As a result, deadlines are being extended, even as non-essential judicial proceedings remain on hold. Steve Baynard of Ennis, Baynard, Morton, Medlin & Brown in Wilmington said that judges in New Hanover County—where lawyers have a fair amount of experience battening down the hatches because of hurricanes—have been working with lawyers helpfully. Judges in many other courts have sent emails out of their offices telling attorneys that they are going to be willing to work with them to find flexible solutions to deal with a problem that is not anyone’s fault.

“I had a motion for a protective order to try to stop some depositions from going forward next week, and the judge agreed to handle that hearing by telephone, which was helpful to all parties,” Baynard said. “I don’t know that we’ve got a feel for how long this is going to last, so everybody is just trying to figure out where we’re going to be by the end of this month and just try to plan the best we can. We’ve rescheduled some depositions for the end of April, hoping that that may be a time when we may all be past this, but we just don’t know.”

Right now, minds are mostly focused on getting through the current crisis, but some of the creative solutions being employed to get around in-person meetings may prove to have staying power even after people are shaking hands again. Many attorneys strongly prefer to conduct depositions in person, but the potential to save time and money had already made videoconference depositions attractive in some cases. Experiences in the next few months could have some attorneys reevaluating that calculus.

A challenge for notaries

Everyone is being asked to practice good social distancing right now, but having to keep your distance creates a real problem for the state’s notaries. Under state law, a notary must be in close physical contact with the person to whom they’re administering an oath or affirmation, whether for depositions or anything else.

As of the time this story went to press, that requirement had not been relaxed, but the Secretary of State’s office, which regulates notaries, is working on creating an emergency procedure so that a notary could administer an oath via a video connection. (While court reporters typically also administer the oath at a deposition, the Secretary of State’s office does not have any role in regulating depositions outside of the notary’s role.)

Implementing such a change would require either an amendment to state law or an executive order from Gov. Roy Cooper. The Secretary of State’s office is currently working with the administration on what such an order might look like, but any relaxation in the requirement that oaths be administered in person would be for a temporary period of time and not be permanent.

Some court reporting agencies have apparently been directing attorneys’ attentions to a law that was passed last year to allow declarants that lack the necessary identification to nevertheless provide an “unsworn declaration.” But that law was intended to deal only with the issue of declarants lacking identification and did not in any way change the requirement that oaths be administered in person.

The Secretary of State’s office has provided guidance for notaries to protect themselves from contracting the virus while performing their duties. That includes keeping a safe six-foot distance from the principal at all times, not sharing pens, wearing gloves and a mask if possible, not touching an identification card or document, and keeping all documents that need to be notarized grouped together to minimize the length of the interaction. The guidance notes that documents can be signed in advance—signatures don’t actually have to be signed in front of a notary, they just need to be acknowledged by the signer in front of one.

Mediations and more

A lot of mediations and other forms of dispute resolution have been placed on hold as well. Some insurance carriers are prohibiting their employees from traveling or attending mediations. Baynard said that he’d already had an arbitration cancelled because the arbitrator, who was in his seventies, felt uncomfortable and said he wasn’t taking any chances and rescheduled.

On March 17, the North Carolina Dispute Resolution Commission pressed the point further, sending out a notice clarifying that DRC court-ordered mediations are included among the court proceedings that have been suspended by Chief Justice Cheri Beasley’s order. As a result, the DRC strongly encouraged that all court-ordered mediations be held via electronic means for now. If all parties fail to provide their consent to conduct mediation via electronic means, the matter will be rescheduled after April 12.

Sara Lincoln of Lincoln Derr in Charlotte (which has implemented a firm-wide work-from-home policy) said that if cases do start to fall behind schedule, as some inevitably will, it’s important to communicate proactively with clients, many of whom likely were not paying especially close attention to Beasley’s order.

“Litigation in particular is especially stressful for the parties involved, and lawyers should be mindful about counseling their clients about these delays and try to decrease their stress levels about these delays,” Lincoln said. “For cases scheduled for trial in 2021, hopefully we won’t have to push back those dates. But for people with shorter scheduling orders, their clients are going to need some counseling about what this means for them. Litigation is stressful, and people want this to come to an end, and I think the wider public is not as aware as lawyers are about how the coronavirus is impacting the court system.”

Another issue troubling attorneys is the potential for a backlog of cases to build up. Even with an extension of filing deadlines, new cases will continue to come into the system while existing ones are largely stuck unless they can be resolved amicably in mediation, which may become an increasingly attractive option. If the suspension is limited to 30 days, things may get resolved fairly quickly. But if, as seems very likely, the delay proves to be longer than that, things will get a lot more difficult.

“It’s going to create a logjam of cases, especially on the civil side,” Lincoln said. “It could impact us as long as two years.”

Follow David Donovan on Twitter @NCLWDonovan

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