Is COVID-19 causing the evolution of the legal practice?
DEL RIO & CARAWAY, P.C.
The colloquial proverb “necessity is the mother of all invention” as shortened from Plato’s Republic “The true creator is necessity, who is the mother of our invention,” may describe what we are seeing currently in the evolution of legal practice.
Currently, California is subject to Governor Newsom’s March 19, 2020, Executive Order N-33-20: Stay-At-Home Order which has directed all individuals living in the state to stay at home or at their place of residence except as needed to maintain continuity of operations of the federal infrastructure, essential businesses, and such necessities as food, prescriptions, and healthcare effective immediately and until further notice.
As such, most law firms have now been forced to transition to working remotely or with only minimal essential staffing. This has definitely changed how we attorneys work but could it possibly be for the better?
Just as COVID has advanced telemedicine to where it has now been approved by Medicare and thereby nearly all private health insurance under the President’s 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act, our legal authority to work remotely has also been advanced due to the Judicial Council of California’s response to COVID.
- (a) Deponents appearing remotely
Notwithstanding any other law, including Code of Civil Procedure section 2025.310(a) and (b), and rule 3.1010(c) and (d), a party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition.
- (b) Required electronic service
(1) A party represented by counsel, who has appeared in an action or proceeding, must accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party must confirm by telephone or email the appropriate electronic service address for counsel being served.
(2) A party represented by counsel must, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address and a copy of this rule, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.
These two emergency rules have significantly, albeit temporarily, set the stage to advance the practice of law into the modern era.
Overnight, Zoom seems to have become a household name and with it remote depositions have become a part of every litigation practice.
Rule 11 gives us the authority to use remote depositions more effectively than ever before by no longer requiring a party or nonparty deponent to be present with the deposition officer at the time of the deposition. Most importantly, it gives us the authority to do this at the election of the deposing party.
Now this is not to say that some defense attorneys have not objected to it. I’ve heard that they don’t feel it will be as effective or that it’s difficult to manage documents or even that they will not have the opportunity to meet with their client in person. I can’t find any authority in the law that gives these objections any ability. In fact, there is authority for the very opposite in cases such as Carrico v. Samsung Electronics, Case No. 15-cv-02087 (N.D.Ca. Apr 1, 2016) where the court cited to a number of other district courts which it stated, “have found that remote videoconference depositions can be an effective and efficient means of reducing costs.” In addition, I can’t imagine a court looking favorably on an objection to remote depositions when the Judicial Council of California went to the trouble of enacting an emergency rule just to allow for this procedure in order to keep litigation moving.
In practice, there are couple of considerations that need to be made: the first is which platform you want to use and the second is the hardware.
As I mentioned, Zoom has become potentially the most well-known option, but many court reporters also have their own proprietary versions that will allow various capabilities from video conferencing, telephone conferencing, live transcript, exhibit presentation, etc.
The hardware side may require a little more thought because many older or less technologically sophisticated clients and witnesses may not have access to a web cam, iPhone, or android phone with videoconferencing capability. So, you may have to be willing to supply a device and potentially a person to help them use it during the deposition.
There are also multiple ways to handle exhibits during a remote deposition. The simplest is to send the exhibits in advance to the court reporter who can then manage them during your remote deposition by making them visible to everyone. There are also independent software solutions such as AgileLaw and eDepoze that will allow you to package your exhibits for deposition, send them to all of the attendees with a link, mark them up digitally during the deposition, and securely finalize them so you can provide the final copies to all attendees and the court reporter.
Case Management Software
Many law firms already utilize case management software and the benefits are widely known from centralizing all your case and client information to calendaring, to document management. However, these benefits have become even more important when working remotely.
Most, if not all, case management software is now cloud based, which means that the information is stored in servers on the Internet so you can access it anywhere. This provides remote access to your case information, your client database, and your documents.
In addition, from the management side, modern case management software provides the ability to run reports and audit cases so that you can ensure productivity and workflow standards. This addresses the concern that many law firms have about the potential loss of productivity by not being able to effectively manage remote employees.
Voice Over Internet Protocol phones are becoming more common and are even offered by the major phone companies such as AT&T. These phones run over your internet service rather than through phone lines. The advantages are usually greatly reduced costs and improved flexibility. By this I mean that you can generally plug them into the internet wherever you are, and they will simply pick up as the extension that the phone has been programmed as. If you are extension 10035 at the office, then you can now be extension 10035 at home simply by plugging into your home network.
Mail Scan and Sort Companies
Another option that has become more relevant as we look at virtual offices and remote work are mail scan and sort companies. These companies used to be mostly used by those who were either in military service, traveling for work for extended periods of time, or working out of virtual offices. However, now they are a more attractive option for those working remotely. Rather than having someone come into the office every day just to sort the mail, scan it, and get it out to the correct parties within the office, a mail scan and sort company will do all of that for you and email you the results. In fact, many of them now have the ability to deposit checks on your behalf directly into your account as well. Thus, potentially eliminating the need to go into the office regularly.
Remote Client Meetings
As COVID and the shelter in place orders are affecting all residents of California equally, it has naturally changed the expectations of clients. Just as they are now adapting to telemedicine appointments with their doctors and socializing with friends over video conferencing apps, their expectations are changing for how they interact with their attorneys.
Many case management software solutions now incorporate the ability for the client to text message or email directly into their case. Moreover, clients are used to communicating now with videoconferencing by Zoom, FaceTime, Skype, Google hangouts, and many other well-known phone apps, so scheduling a video conference call with the client is actually becoming convenient and more normal to them.
Remote Mediations and Arbitrations
Many mediators and arbitrators have opened up the ability to do remote mediations and arbitrations which is an interesting concept as it could potentially allow for more cost-effective ADR without having to worry about travel and yet still be able to put on the client’s testimony, document base evidence, and even expert testimony without having to have a doctor shut down their office for half a day in order to travel to your location, testify, and travel back. Think about it, if the doctor is currently set up to do telemedicine, which nearly all will be if they want to continue to treat patients at anywhere near the same rate during the shelter in place order, then they are naturally set up to be able to give remote testimony.
This used to be a very touchy subject with many vendors offering services outsourced out of country but they have always come with the concerns of quality control and the more general concern of outsourcing American jobs overseas. However, now that the feasibility of remote work has come to mainstream attention, many people are realizing that remote workers can be anywhere and do the job just as effectively and maybe even cheaper. With the tools discussed above we can audit work product for quality control on-the-fly or with scheduled reporting. Also, it’s no surprise that the cost of labor differs from geographic area to geographic area. So, an experienced paralegal in Tennessee could do record reviews or discovery at a fraction of the cost of an experienced paralegal in LA.
So What’s Next?
As I write this article, the Solano Superior Court has scheduled a Zoom meeting for Thursday, April 30, 2020. One thing I would love to see become the norm would be electronic delivery of settlement funds. We have only seen the tip of the iceberg in terms of what could be done. We have the technology available to be able to run a legal practice from anywhere, taking advantage of any time zone, and accomplishing the same amount and quality of work.
About the author:
Attorney Daniel Del Rio has more than a decade of experience practicing personal injury. In each and every case, he passionately upholds the rights of those who have been injured or whose loved ones have died as the result of another’s negligent or reckless behavior.