Thomas M. Schehr
Nasseem S. Ramin
Thursday, May 7, 2020
The COVID-19 crisis has proven the maxim that “the only constant in life is change.” For litigators, it has become a challenge to move lawsuits forward and meet scheduling order deadlines while following guidelines to stay home and social distance. Fortunately, there are tools available (and more coming) to assist litigators in balancing these ostensibly competing interests. This article is a primer on virtual litigation practice, along with tips for effective virtual advocacy.
Court appearances by telephone and videoconference should become more common. In federal court, Fed R Civ P 77 allows flexibility regarding hearings and court appearances: any act or proceeding other than trial “may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the district.” In state court, the Michigan Supreme Court issued a memo on April 7, 2020, to all chief judges, court administrators, and probate registers encouraging the expansion of remote proceedings during the COVID-19 crisis. All state court judges are required to make a “good faith effort to conduct proceedings remotely whenever possible.” Remote procedures must:
- be consistent with a party’s constitutional rights;
- enable confidential attorney-client communications;
- allow public access to the proceedings (during or immediately after via a video recording) unless the proceeding is closed or limited by statute or rule; and
- enable the judicial officer to create a recording sufficient to enable a transcript to be produced.
The State Court Administrative Office also updated the Michigan Trial Court Standards for Courtroom Technology and released Standards, Guidelines, and Best Practices for Virtual Courtrooms. Procedures and preferences will vary by court and even individual judges, and the State Bar of Michigan is maintaining a list of communications and updated procedures by circuit. The Oakland County Circuit Court, for example, has offered “Judge On-Line,” an alternative to face-to-face court hearings, since 2009. “It is designed especially for scheduling, status, pretrial and settlement conferences, as well as motion hearings and other court proceedings at the discretion of the presiding judge.” Generally, there is a $30 fee to use this service, but per the court’s home page, it is “temporarily waiving ALL Judge On-Line Fees to promote telephone court appearances.”
The primary rule of thumb for practitioners during remote court appearances is simple: act like you are in court. This seems obvious, but anecdotal reports from judges suggest that practitioners seem to be less formal, less focused, and more distracted when appearing remotely. Litigators should not allow the formality and decorum present in a “live” courtroom to fall by the wayside because of an appearance by videoconference or telephone.
There are several steps you can take to enhance a virtual court appearance. First, confirm the technology to be used and conduct a trial run in advance. For example, if you are delivering oral arguments via Zoom, have a Zoom meeting with a colleague to familiarize yourself with the technology. Second, do your best to eliminate the potential for noise or distractions during the hearing (in other words, let the dog out and put on a movie for the kids). Also, mute your line when you are not speaking. Third, mind your background during video appearances. Judges have commented that even the most tastefully appointed home office can be distracting, so consider substituting a plain background or even a virtual background if the technology allows it. Fourth, dress professionally for video appearances, just as you would for an in-person appearance. Last, consider standing while delivering your argument. Although that may seem unnecessary, standing puts you in the position you would be in court, lending an air of formality to your presentation and reducing the likelihood that you may fidget or become distracted.
In federal court, Fed R Civ P 30(b)(4) permits depositions taken by telephone “or other remote means” when the parties agree or the court so orders, and “the deposition takes place where the deponent answers the questions.” Under Fed R Civ P 29, the parties can stipulate that “a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified—in which event it may be used in the same way as any other deposition.”
It is fair to assume that federal courts will expect counsel to cooperate regarding remote depositions. During a March 25, 2020, videoconference held by the Eastern District of Michigan chapter of the Federal Bar Association and which the authors attended, Chief Judge Denise Page Hood stated that the court does not intend to issue a blanket order extending dates due to COVID-19, and extensions will need to be decided by individual judges. As a general proposition, the court expects practitioners to use available technology when it is feasible to do so.
In state court, MCR 2.302(F)(1) allows parties to stipulate or the court to order “that depositions may be taken before any person, at any time or place, on any notice, and in any manner, and when so taken may be used like other depositions.” Further, MCR 2.315 allows for video depositions. Given these rules, state courts will undoubtedly expect counsel to attempt to work out their differences regarding remote depositions before engaging in motion practice.
When proceeding with a remote deposition, it would be wise to confirm any stipulations in writing. Further, counsel should endeavor to make the notice of deposition as clear as possible: reference any stipulation or order regarding the remote deposition, disclose that the deposition will be recorded by video (if appropriate), and confirm that the witness will be sworn remotely.
As with any deposition, preparation helps. Test your camera, speakers, and internet connection before the deposition. Be wary of wireless Bluetooth devices, which do not always provide a clear audio connection. Consider preparing and marking your exhibits before the deposition, and even distributing exhibits before the deposition if appropriate. Finally, at the start of the deposition and on the record, have the witness (1) confirm that there is no one else in the room with them or positively identify anyone else in the room, and (2) agree not to communicate with anyone during the deposition (i.e., via email or text message).
A remote trial seems unlikely in the near future. In federal court, Fed R Civ P 77 seems to prohibit trials from occurring outside the courtroom: “Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom.” For state court matters, the Michigan Supreme Court issued Administrative Order No. 2020-10, ordering that all jury trials be adjourned through at least June 22 “because the state of emergency and related social distancing make it impossible to conduct trials using traditional methods.” This order also authorized the State Court Administrative Office to pilot remote jury trials, with the first phase of the pilot involving a mock trial to develop practices and the second phase conducting remote jury trials and sharing resulting recommendations. It will be interesting to see whether the challenges that would be presented by a remote trial can be addressed.
The American Arbitration Association has announced that no hearings will take place at its facilities until at least September 1. And even when they reopen, considerations like social distancing guidelines may make remote arbitration a common occurrence going forward. Arbitration is a creature of contract, and therefore the agreement of the parties regarding a remote arbitration is crucial. When the American Arbitration Association’s commercial arbitration rules are in effect, the arbitrator may “allow for the presentation of evidence by alternative means including video conferencing.” Similarly, the Judicial Arbitration and Mediation Services’ rules provide that “[t]he Hearing, or any portion thereof, may be conducted telephonically or videographically with the agreement of the Parties or at the discretion of the Arbitrator.”
Once the parties agree to remote arbitration, joint planning will be helpful in preparing for and conducting the arbitration hearing. The parties should test the technology as explained above, collaborate on a joint set of exhibits to be identified and disclosed before the arbitration hearing, and agree to the order of witnesses to allow for an efficient presentation of evidence to the arbitrator.
During the pandemic, it will become necessary for litigators to adapt to a more virtual practice to meet judicial and client expectations. Fortunately, courts and arbitration tribunals are adjusting to allow litigators to safely represent clients during the age of social distancing.
Thomas M. Schehr is a member of Dykema Gossett PLLC, where he practices commercial litigation. He joined Dykema in 1999 after a two-year clerkship with U.S. District Judge Avern Cohn. Schehr has had several engagements as a special master in federal court and is a certified commercial arbitrator with the American Arbitration Association. He is a past president of the Eastern District of Michigan Chapter of the Federal Bar Association.
Nasseem S. Ramin is a senior attorney at Dykema Gossett PLLC. She is a commercial litigator with a primary emphasis in the areas of consumer financial services, commercial real estate, and lending litigation, in which she represents some of the nation’s largest financial institutions. She has been recognized in Michigan Super Lawyers Magazine as a “Rising Star” for business litigation every year since 2013.
Articles that appear on michbar.org do not necessarily reflect the official position of the State Bar of Michigan and their publication does not constitute an endorsement of views which may be expressed.
 Administrative Order No. 2020-08, __ Mich __ (2020).
 See also MCR 2.304 (persons before whom depositions may be taken) and MCR 2.306 (depositions generally).
 Administrative Order No. 2020-10, __ Mich __ (2020) and Administrative Order No. 2020-10, Delay of Jury Trials, memorandum from Tom Boyd, State Court Administrator (April 23, 2020).
 See AAA Commercial Arbitration Rule 32(c) and JAMS Arbitration Rule 22(g).