With civil courts closed for jury trials and almost all other matters for the foreseeable future, civil trial lawyers owe continuing duties to the court system to continue to prepare their cases for disposition, whether by trial or settlement.
Court deadlines for the completion of discovery and the filing of motions should not be ignored. While all of us are comfortable working in our law offices, we must continue to advance our clients’ causes from home. Phones, email and the internet are still working. So should lawyers.
Over the past few weeks, we have experienced a rash of deposition cancellations because opposing counsel insisted on being present with the witness when he or she testifies and that was not possible due to stay-at-home restrictions.
This needs to stop.
A stay-at-home order is not a stop taking depositions order. While we might prefer to be sitting adjacent to our witness when testifying, there is no requirement that the lawyer has that right. Do you sit next to your witness when she is testifying at trial?
The Federal Rules of Civil Procedure and state rules uniformly allow depositions to proceed by electronic means. None of the rules mandate that depositions proceed by electronic means. Good examples follow:
- FRCP 30(b)(4) By Remote Means. The parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means.
- Illinois Supreme Court Rule 206(h) Remote Electronic Means Depositions. Any party may take a deposition by telephone, video-conference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object.
Civil trial lawyers will be working from home and not trying cases for many more weeks. The last two weeks have proven to our practice that defense lawyers are almost uniformly unwilling to permit depositions to proceed by video conference. If the depositions are not taken, the case is not ready for trial and the defendants will not get a judgment entered against them until much later. Defendants uniformly favor delay; delay is the enemy of the plaintiffs.
Judicial officers should require that depositions be taken by remote means as long as the current COVID-19 restrictions are in place. The party taking the deposition should foot the bill for the electronic means, be it telephone or an internet-based service such as Zoom, unless the parties agree otherwise. Video conference services have the facility to “share screen” so that the witness and other participants can see an exhibit on screen while the questioning is taking place. It is cheaper than traveling to the witness or the witness traveling to the lawyer. It requires very little technological expertise. See Model Rule of Professional Responsibility 1.1; comment 8.
The courts should make it clear that depositions cannot be postponed just because one or more of the lawyers wishes to sit in the same room with the witness. That is a luxury we cannot afford in these difficult times.
Judicial officers should make clear that court deadlines should be followed. The administration of justice does not stop because there are stay-at-home orders. Legal services are essential services. The rules should all be used by the court and the parties “to secure the just, speedy and inexpensive determination of every action and proceeding.” See FRCP 1.