The coronavirus (“COVID-19”) pandemic has presented novel challenges to civil litigation. Courts across the country are struggling to balance the demands of justice and public health. Consistent with government guidance on social distancing, courts at the federal and state levels have reduced in-person proceedings and non-essential functions. In turn, litigants have been urged to defer non-urgent litigation, to avoid diverting resources from an overburdened court system in this time of crisis. Now more than ever, the bar must do its part by acting with civility, creativity, and a spirit of cooperation to help the courts and litigants navigate these challenging days.
As the government signals that these restrictions may be needed for weeks to come, how can we continue to achieve civil justice efficiently? One important answer to this question is virtual technologies that allow litigation tasks to proceed from afar. The kind of extensive reliance on remote technology required by COVID-19 is foreign to even the savviest litigators and most experienced judges. The drama of the American courtroom is the stuff of movies and television. An impassioned closing to a jury, a withering cross-examination of a recalcitrant witness, a scholarly argument to an
appellate panel—all venerated devices for attaining justice and all placed on hold by the novel coronavirus. This extraordinary public health emergency has forced an immediate and dramatic change to the manner in which litigation is conducted all over the country. Where it was once rare to argue a motion by phone, unusual to conduct a deposition remotely, and unheard of to do so for a trial witness, in the near term, this is becoming the new normal. Both courts and counsel are rapidly adapting to this new reality. And once they do, some of the innovations of this crisis are likely to
endure; the litigation technologies and techniques we use out of necessity today could very well be used as a matter of course in the years to come.
This memorandum reviews the evolving landscape of how courts are responding to COVID19 and how civil litigation has been impacted, and it provides guidance for navigating some of these changes.
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