Litigation and Dispute Resolution During a Pandemic

September 18, 2020  |  Joan M. Quade

Intelligence is the ability to adapt to change.  – Stephen Hawking

My, how things have changed in less than a year. Our court systems and law firms were humming along mediating, litigating, arbitrating, and getting those business and personal disputes settled or resolved in what we refer to as “the normal course of business.” Most, if not all of us, never thought even a year ago, that the way we did business – the business of lawyers and law firms – would have to be completely reimagined to survive and keep dispute resolution moving forward. Read on as we discuss litigation and dispute resolution during a pandemic.

Not Exactly Business as Usual

Legal disputes did not stop with COVID-19. In fact, it created even more issues to be resolved among businesses, individuals, and insurance companies. It even created new banking, contract, insurance, and employment issues that needed immediate attention. But the more common disputes like breach of contract, warranty cases, real estate disputes, and construction defect cases did not slow down. As such, there was an uptick in these run-of-the-mill cases after we overcame the initial shell shock of the pandemic last spring.

The New Normal

Surprisingly, in March and April, our business did not slow down much. While the court systems were all but closed to civil matters, we were forced to reimagine how to continue to serve clients and help resolve their disputes while adjusting to working from home, learning Zoom, watching the news for the latest damage report, and navigating online grocery shopping. We monitored our temperatures and olfactory senses, while discussing at the Board level (via Zoom, of course) how to continue to do business and protect our clients, lawyers, and staff. We guessed at how long the court systems would be closed and how we would be able to take depositions, do mediations and arbitrations, as well as how we would get back to having the ability to usher disputes along to resolution. We still had clients who needed us and frankly, we needed them as well, to feel some sense of normalcy in these crazy times. There were cases that were ready for trial and got delayed, and new disputes were popping up daily. We had to adapt. And adapt we have. Things may look a little different, but they are progressing, and above all, we are learning new things as we go.   

Welcome to the Virtual Courtroom

I wouldn’t have thought a year ago that I could do an entire trial via Zoom, but I did that in a Hennepin County case. It was a court trial (civil jury trials are, for the most part, still delayed). To say I was a little worried ahead of time is an understatement. My client was nervous as well. When you have tried cases for over thirty years in person and now must change the format, the unknown is scary. There was plenty to worry about. How would the exhibits be handled? Would the connections on the platform be solid enough to maintain good quality sound for everyone and continuity of the witnesses during the trial? Would cross-examination be as effective? 

Thankfully, none of our fears materialized. The key to success was good organization ahead of time. We had a Zoom pretrial with the judge and laid out a perfect battle plan. We all agreed to exchange all exhibits, premarked, ahead of time in ring binders (I like ring binders for exhibits anyway and have been using those for years for organization in trials and arbitrations). The books were done so that there was one ring binder with the Plaintiff’s exhibits and one ring binder for the Defendant’s exhibits. The witnesses had the sets of books in front of them as well as the Judge and everyone else. It helped throughout the trial to have everyone on the same page and no loose pieces of paper. We had a plan in place for any rebuttal exhibits with screen sharing and we had the witness order preset so they also knew when they had to log on. For those of you who like to surprise your opponent with the witness lineup, that does not really work with Zoom, but if you have a lawyer who has done any amount of trial work, your surprise witness lineup is not going to throw them off, anyway. The Judge’s clerk gets a lot of credit on this one for running the Zoom perfectly—not one glitch the entire three-day trial. 

The witness who was testifying was in a different room from anyone else to prevent distractions and sound feedback and any potential witness interference. Of course, the lawyers were warned that this trial should be treated as if being held in a courtroom and all the same rules apply. Direct and cross worked very smoothly, breaks were taken as usual, and then written closings were agreed upon. This trial seemed in some ways even more organized then some I have had over the years and I did not see any disadvantages. It was so well run, and I didn’t feel anything was missing from the in-person trial. I would do it again.

Depositions, Arbitrations, and Mediations

It is not only trials that needed to be reimagined, but also depositions, arbitrations, and mediations. I did a mediation via Zoom and it worked just fine. It even settled. The only disappointing thing was that in traditional mediations, there’s a certain bonding and comradery forged when in a room alone with your client. So even though we settled, it felt a little anticlimactic. I’ll have to work on that. I’ve had mediations in person since the pandemic with all the necessary COVID precautions. Everyone was masked up with a lot of hand sanitizer available. We settled and it worked well, maybe because there was little more normalcy.

I’ve also conducted an in-person arbitration where I represented a client. COVID precautions were taken there as well. The room capacity was 80 people maximum, but we had about 10 people spread out with masks on unless someone was testifying or doing direct and cross examination. We limited who could attend. Sometimes we bring extra lawyers such as associates or law clerks to assist and observe, but both sides limited the number of attendees. That also worked well. It looked a lot different, but nothing seemed to be lost with the new process and precautions. I am also an Arbitrator for the American Arbitration Association (AAA) and I have conducted arbitrations via Zoom. The AAA has a very good workable platform to conduct arbitrations and I have not experienced any compromise for the process. Everyone has their opportunity to present their cases and thus far, I have not had any glitches. Exhibits were supplied to me ahead of time and of course, the parties exchanged exhibits as well. 

Our world has changed, but litigation, arbitrations, and dispute resolution in general need to evolve with the times. We can adapt and continue to do the business of lawyers and law firms safely, assisting our clients with disputes and fair resolution of those disputes. I believe our legal system, while retaining many of its good qualities, rules, and processes in place for fair and full hearings, will look different from now on. Maybe more efficient in some ways and in turn, more economical, especially for smaller cases. If there is a silver lining in these crazy times, it’s that we have learned to do things in different ways to achieve the same end result. We can thrive going forward even in a pandemic and continue to serve our clients the best way we know how. 

Contact the knowledgeable attorneys at Barna, Guzy & Steffen with questions related to litigation and dispute resolution.

Joan Quade is a Shareholder of Barna, Guzy & Steffen.