|By Alain Fernandez, Esq.|
The COVID-19 pandemic has presented novel challenges to civil litigation practice. Georgia state and federal courts continue to balance public health considerations and the administration of justice. Courts have implemented social distancing policies at the state and federal level, which for months have curtailed non-essential court functions and in-person proceedings.
In response to COVID-19, Georgia state and federal courts adopted alternative modes for pre-trial hearings and motions. Telephone and video conferences between the parties and the court have replaced physical, in-court appearances. In fact, the Georgia Council of Superior Court Judges proposed amending its current uniform rules to allow civil non-jury trials to be conducted by video conference. The proposal, drafted as an amendment to Rule 9.1 of the Uniform Rules of Superior Court, would allow video conference trials in cases where a constitutional right to trial by jury does not apply, or where the parties have waived their right to a jury trial. Virtual civil bench trials may be an option in the future.
For the most part, civil litigation can be performed well while adhering to social distancing with the integration of modern technologies. Court filings such as pleadings and motions can be accomplished via e-filing with only some jurisdictions slow to adopt this rapidly growing trend. Although e-filings began prior to the implementation of Covid-19 precautionary measures, its importance in civil litigation practice has been magnified in the wake of COVID-19.
Conducting discovery is also easily accomplished. Discoverable documents can be electronically transmitted between the parties, and responses to discovery requests can be e-filed and sent electronically. Communication between the parties can be accomplished via telephone, e-mail, or video conference. Depositions of parties can be accomplished virtually through video conference software such as Zoom and Google Meet. However, even with advances in virtual technology there are limitations. For example, thorough inspection of certain locations and large, not-easily movable objects may still require in-person engagement.
Furthermore, these adaptations to civil litigation practice are not without limitations and drawbacks. For instance, despite wider society’s access to the Internet, there are some in the legal profession with limited access. The requirement of personal service (absent party consent) still generally requires departure from social distancing. Discovery, namely depositions, conducted virtually has its limitations. For example, a virtual deposition may make it more difficult to establish rapport with the deponent, observe the deponent’s non-verbal responses, and reduces the ability to gauge a deponent’s credibility and likeability.
In mid-May, Georgia began to ease COVID-19 restrictions by reducing stay-at-home orders, re-opening businesses, and beginning the process of reintegrating wider society back into the workplace. Social Distancing in response to Covid-19 may be temporary, but it, or some hybrid of it, may also be the new “norm.” Regardless, it would benefit our legal system to learn from this experience as some of the practices born from it 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.
– In light of our Covid-19 experience, social distancing technologies and practices in civil litigation will likely have a lasting impact.
– Telephone, video conferencing, and e-filing are important tools for civil litigation practitioners, and are necessary for civil litigation practice with social distancing in mind.
– Much of civil litigation practice can be performed well while observing social distancing including pleadings, motions practice and hearings, discovery, and trials (to a limited degree).
– Social distancing technologies and practices have limitations, which for now still require in-person participation.
– Expect no jury trials for the next 6 months or more.
– Litigation may take longer to resolve than in the past.
– Anticipate increased use of alternative dispute resolution (ADR) to resolve cases to avoid protracted delay.