In this episode of Summary Judgment, Josh, Aaron and Margaret discuss what the court system looks like today in a post-COVID era, and how that is impacting our ability to move cases through the process.
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0:00:16.0 AF: Hey, Josh.
0:00:17.0 Josh Fogelman: Hey, Aaron.
0:00:18.4 AF: I want you to close your eyes for a second, okay.
0:00:20.9 JF: Got them.
0:00:22.4 AF: You’re about to try a case. It’s Monday morning.
0:00:25.4 JF: I’m ready.
0:00:25.8 AF: You’ve worked the entire weekend 72 hours straight, but you’re prepared to ace this trial for your client.
0:00:35.5 JF: I’m sleep-deprived but I’m ready.
0:00:36.7 AF: You are ready. The jury panel, 70 people from Austin, Travis County area are assembled in the hallway. And an email comes in from your opposing counsel and it says, “I’ve tested positive for COVID. Here’s a picture of my at-home test.”
0:00:58.9 JF: I hear you.
0:01:00.7 AF: How do you feel?
0:01:02.4 JF: Present me a wall [laughter] against which I can proceed to pound my head repeatedly. That’s how I feel.
0:01:11.4 AF: Well, that’s a true story. That happened to me, and that’s a great visual for what we’re about to talk about which is what is… What are the courts like in the post-COVID era, the allegedly post-COVID era? And just for our listeners, that exact scenario did happen to me at the end of February. So Margaret, do you wanna take over and kinda give us a little more guidance on what our topic is today?
0:01:37.6 Margaret Von Flatern: Sure, yeah. So that’s our topic, what does the court system look like, our civil court system look like today? And how is that impacting our ability to move cases through the process and what’s the impact on both our business and our clients? So I guess let’s start with Aaron has given us a taste of what maybe some of the negative outcomes are. Although defense attorneys could always call in sick, but calling in COVID is a new kind of sick, but what are some of the positives that have come out, come from the changes the courts have made since 2019?
0:02:31.2 AF: I would say… And my story aside, I would say the changes have been overwhelmingly positive in so far as the courts are now opened virtually to witnesses coming from really far away, expert witnesses, family witnesses who otherwise wouldn’t be able to make it. Some of the pretrial procedures are happening virtually as a matter of course, for example, depositions over Zoom and that has made getting multiple parties together on the same scheduling page a lot easier, especially if lawyers are traveling from other cities for depositions. There have been… We have electronic sign-ups of new clients. We’ve always had that but I think that’s become ubiquitous in the industry. Is making it easier and more convenient on the clients. Jurors are reporting that they really like using the iPads to handle their jury duty from their living rooms, which is happening less and less now in the post-COVID era, but still occurs. Josh, what are some of the things that you would say were positive from the experience?
0:03:43.2 JF: Yeah, so I think something that anybody who’s ever had any involvement in the legal system, whether as a juror or as a litigant or otherwise can recognize that it’s an arcane system. The jury trial court system has been around in America since America was born. It’s a fundamental part of our constitutional right and how our country operates and a lot of old institutional rules and practical requirements remain that are hundreds of years old. And it’s historically been a very slow moving industry. You’ve got this kind of interesting combination of government involvement in the bureaucracy that comes along with government involvement plus the private industry that typically is always pushing for innovation and change. And those two things were sort of seemingly at odds for some period of time, and COVID seems to have forced a reckoning between those two I wouldn’t say competing interests, but somewhat conflicting interests. So for example, I’ve been practicing for 15 years now and for the first 12 of those years pre-COVID. Doing a deposition remotely wasn’t really unheard of, but it certainly wasn’t the standard.
0:05:34.4 JF: Even though the technology was generally available and the rules permitted depositions to be taken, depositions being when you put a witness under oath and you examine them under oath, depositions weren’t typically done remotely even though the rules allowed it. And when COVID hit and people couldn’t be in the same room together, we all had to pivot as an entire industry, and learn how to do things remotely and build the technology that was gonna be reliable and usable by everybody in the room, everybody that was participating in any sort of formal or informal meeting, legal related meeting, and it forced this adapt… I know did it in many industries, but it forces adaptation in the legal world that has made, I would say, the courts in generally more accessible.
0:06:33.2 JF: It’s easier to litigate cases when you don’t have an expert witness or another witness who might be located in a different state or a different city that’s gotta take off a day from work or two days from work, get in their car or get on an airplane, fly to the venue, be put up in a hotel, spend their day trying to find some lawyer’s office or some conference room somewhere, only to sit there for three hours and be questioned and miss their family and their friends and their work. And it really has helped shine a light on how much inefficiency there was previously in the system and how we could do things better to be faster and more economical and get things done more efficiently. And I think that to sort of answer your question, that those improvements are quite pervasive across the industry now, I would say saving except for, of course, some concerns about now needing to get back in-person for certain aspects of the practice of law, where you can get a bomb dropped on you randomly at the last minute with someone who’s got COVID. That can really, really make things challenging.
0:08:03.2 AF: Yeah, in-person is special. And when we started going to remote trials, I think a lot of the true trial lawyers, the ones who love to go in and talk to juries, they were extremely frustrated with the idea that they would be picking juries over Zoom and that they would be having to deliver a closing argument over Zoom to people that they weren’t having that warm connection with. And so we… I’m kinda torn. To me, that is special, but if you are not in-person, you don’t get derailed. It’s a more predictable process. The experts plane doesn’t get delayed, the hotel doesn’t get flooded the night before, the jury doesn’t get stuck in traffic or have trouble with parking. It is a very predictable… It’s all laid out like a computer program as to how the trial should proceed and it does proceed reliably. And to me, there is a challenge in coming through the camera, so to speak, and connecting with jurors. But if you have ever seen a good movie, you know it can be done.
0:09:22.7 AF: That’s put a challenge on us practitioners, how do we come up with creative presentations that engage the viewer? And what’s beautiful about that is that as we’ve worked through that problem, we found it’s also applicable to the in-person trials. And so I think it was a healthy challenge for our industry to have to figure out how to come through the camera because it’s sort of said, okay, maybe sitting down and writing an outline and just you speaking top down to the jury for 20 straight minutes about people that they don’t know, and maybe don’t care about isn’t the best way to get their attention and get them motivated on your side. So we’ve had to experiment with, okay, how can we put together dynamic presentations with PowerPoint, or how can we use the IPEVO technology, this sort of document camera technology that allows us to present a deposition in a way that looked a lot more like a movie than just like a guy sitting in that room? How do we craft our narratives to be more attention getting, how do we get people to put themselves in the shoes of our client or in the shoes of the negligent person who should have known better than to do what they did.
0:10:46.7 AF: So I think there’s been a lot of healthy challenges that have come out of COVID we still face and that was kind of the point of my opening, was to say it’s not over guys. We still have to deal with logistics. But a lot of good has come out of it.
0:11:01.3 MF: So I hear you and that those changes have made us be more creative in how we approach storytelling with the jury. Is there any negative side to that with this idea that it’s not just somebody practicing law, going down to the courthouse, telling a story to a jury that now you’re basically… It’s opening night on Broadway every time you go and approach the jury.
0:11:38.7 AF: Yeah, I think that’s reps, right? So when you make trial into a massive production that requires a huge team to build like you would with a play on Broadway, you also make it unwieldy. I somehow I can’t get that word right, unwieldy, because as a trial lawyer, the most important thing really is reps, how many times you’re gonna get in front of that jury and face the fire, how many times are you gonna dig deep and find the emotion that connects with them? That is something that over time you get better at. And I know personally my memory would suffer if I was delivering an opening statement in the beginning and I was so nervous. It’s like if you forget your own case in that moment, it’s crazy ’cause you’ve been doing nothing, but for weeks just studying it and you know every facet. You know minute by minute, second by second how the incident played out that hurt your client, you know every single treatment they went through. But as you stand up in front of the jury, you may just forget all of that for a second and reps can help that. The best trial lawyers are comfortable. And so it is working against us in that fashion.
0:12:53.7 AF: So picking your battles is kind of my answer to that, is you have to know what you’re going to do on each case. You’re gonna have a mission and you’re gonna go achieve it. And if you are approaching it with courage and confidence, you’ve done your job.
0:13:13.3 JF: Yeah, and I think one of the things that we’re kind of transitioning back into the courthouse now, and it’s a little bit… I’m not gonna say it’s uncomfortable, but it’s you gotta shake off and almost unlearn a lot of the activities that we have learned over the last three years. And getting to your point, getting so comfortable taking those reps in front of a camera with depositions and mediations and hearings and being in front of the court remotely and getting maybe a little bit more casual, and to re-remember some of the formalities of actually being in the courtroom and remembering how to organize your documents, to present them live in front of the judge, and remember what those steps look like that we got so accustomed to before the pandemic. And I think what we’re sort of seeing… And I’m interested to hear sort of some of your experience on this too, what we’re seeing is as we sort of transition in this post-COVID era back into more in-person hearings and more in-person jury trials, we’re walking away from this with some sort of a hybrid where the court…
0:14:37.1 JF: The courts are adopting some of the technologies and procedures that they put in place to handle remote hearings and incorporating those into even the in-person hearings and in-person trials. And I know you spent a lot of time getting ready for in-person trial recently and it would have been actually one of the first trials in the new Travis County Courthouse. So you’ve had an opportunity firsthand to get to know what the court’s expectations are for organization and technology. What was that like?
0:15:14.5 AF: Yeah. So the court has kept a lot of the COVID legacy. So we have, for example, an electronic cloud storage drive into which all the exhibits need to be dumped. But if you’re not approaching that thoughtfully, you’re gonna put them in there out of order, and then the jury is gonna be looking at Exhibit 89 sometimes as the third exhibit, which is confusing and weird. But once it’s in there, you can’t fix it. So there’s some lessons to be learned from stuff that you never would have thought about before ’cause you would have just hauled all your paper and photographic and video depositions to court and had a hearing before the trial started as to what order they’re gonna go in and how they’re gonna be in the notebooks and who is gonna do the index. You’d put the stickers on them and you’d label them in real-time. Now it’s all gotta sort of be pre-set. Now the flip side of that is, the benefit is you’ve got a bunch of pre-set exhibits that you don’t have to think about. They’re there. I don’t have to worry about if the document camera is going to work because it’s all…
0:16:14.9 AF: I can scroll through on my laptop in front of the jury connected by an HDMI cable and they’re looking at it on a 15 foot screen. So I’m no longer worried can juror number seven read this or not. The other thing that they’ve kept is the ability… And they’re really… You gotta give credit to the court staff. They work really hard on figuring this stuff out. They’ve become really agile. So for example, in my trial, when the lawyer says, “Hey, I’ve got COVID. I need an emergency motion for continuance in order to continue the trial to a different date.” That is under our rules has to have a hearing. Well, I’m already in court so how are we gonna do the hearing? The judge is able to connect the lawyer on the big 15 foot screen with us, so that we’re looking at the lawyer, their huge head in the middle of the courtroom looking asymptomatic by the way.
0:17:21.2 AF: And the…
0:17:22.3 MF: Shade.
0:17:24.3 AF: And she is looking at the courtroom in a sort of a oblique bird’s eye view so that she can see the judge, she can see me, co-counsel, she can see my client, she can see the court reporter and anybody who’s in the gallery. So that lawyer is having a hybrid hearing, right? It’s not a virtual hearing. I’m there, but that lawyer is remote from their house for safety concerns. So the court was able to get that done to their credit, which would have been really awkward if it had been like, “Okay, well, we need to have a hearing on this under the rules, so we need you positive COVID person to come to the courthouse.” That wouldn’t be good, right? You gotta remember, these are elected judges. They don’t wanna expose 70 people to COVID and have that be a headline the next day. So of course, there’s a lot of pressure on the judges. That’s a legacy that’s important. I think one of the things that we need to look at is here in Travis County we built a new courthouse during the COVID era. And so how did they build it? Well, they built it for this purpose and that’s really to their credit. But it’s interesting that the COVID has physically shaped the courthouse.
0:18:44.7 MF: So that’s really interesting and maybe can lead to a wrap up conversation on this topic, which is the courts have made a lot of changes. Most of them, I think we all agree, have been good. What would you both like to see? What else could be made better in the age of post-COVID? What does a modern courthouse look like for you guys? And how can it best serve both our clients and the community at large, the jurors that come and show up to do this good work?
0:19:25.5 AF: I wish we had Judge Soifer here. She and Judge Mauzy I believe got together and have developed new protocols to make the process more predictable for both hearings and for trials so that I don’t have a cloud storage drive with the court that’s all jumbled and has the exhibits out of order. Just little things like that. The standards for reducting records, when things are gonna be done by, forcing the parties to be a little more agreeable on exhibits so that we can at least know which ones are gonna be in dispute as we go into trial and which ones are gonna be pre-admitted.
0:20:08.7 MF: And how does that serve the client? I know…
0:20:11.2 AF: Well, yeah. So ultimately, it serves client when we can get trials done, and the courthouse has a massive back load right now. Every judge in town is gonna be… If they were here would be complaining about how backlogged it is, and anything that can help turn the wheels of justice, process these cases, get them to resolution, put some pressure on the other side to settle what they can and get the ones that are triable in front of juries.
0:20:41.7 JF: I think continuing to foster minimizing in-person attendance when it… Unless it’s absolutely necessary to get a trial across the finish line. To your point, Margaret, about how does that ultimately benefit the client? So traditionally, when you try cases, if you’re bringing experts, you bring them live. You don’t know exactly when you’re gonna present them. You typically have to give them a one or two-day window, and you might say, “Hey, we’re planning to present you on Monday morning.” But it might not be until Tuesday afternoon that they actually go because of various delays and procedural concerns that can rise up during trial. So allow… Continuing to allow and dial in presence of… Or allowing a remote presence of experts and other remote witnesses is gonna be a really important part of keeping the costs down and getting cases across the finish line efficiently because it’s expensive to pay for time of an expert that’s not being used, it’s expensive to pay for travel and lodging of an expert for time that’s not absolutely, critically mandatory. And I think as we continue to do things like dial in, exhibit organization, pre-admitting exhibits, doing things like that forces a larger conversation with opposing counsel. It forces coordination.
0:22:23.7 MF: Yeah.
0:22:23.8 JF: It forces an agreement, and with that, I think you can put yourselves in a better position to better predict when and how the trial is going to proceed in a way that allows us to not be wasteful of money and resources and time. And ultimately, of course, those things are really beneficial to the client, and then I think we’re headed in that direction.
0:22:49.2 MF: Yeah. Well, thanks for your insight on this topic today, guys. I think it’s really interesting. As the non-lawyer in the room, it’s always really eye-opening to learn more and more about the business of the courthouse because the courthouse is a functioning organization just like anybody else, and the improvements that they make to the systems on there affect all of us. So thanks for letting me hang out and talk about this.
0:23:29.0 JF: Thank you for your time.