As courts have carefully established procedures for moving judicial proceedings online, litigators have become well versed in the new normal for virtual trials and hearings. Clients and witnesses, however, may not know what to expect when entering a virtual courtroom or deposition. Proceedings involving asbestos litigation, for example, typically include expert witnesses whose testimony is often key to a favorable outcome. How has the move to video affected the way these proceedings go forward? Malcolm Brisker of Goodell DeVries’s Asbestos Litigation practice offers this Q&A.
Q: Have courts fully adapted to operating during the coronavirus pandemic?
A: Yes. While law firms and in-house counsel responded quickly to the onset of the pandemic in March 2020, the judicial system, by necessity, took a more gradual approach. Faced with a host of unique challenges, courts carefully established new procedures to ensure that hearings and trials could proceed in such a way as to meet the highest ethical and professional standards, and to ensure that court proceedings are equally accessible to all parties.
Courts in asbestos litigation adapted quickly to using video platforms to conduct pre-trial hearings, including motions hearings, pre-trial conferences, status conferences, and other court proceedings. That has helped keep the asbestos docket moving at a fairly regular pace. While courts where I practice, in Maryland, DC, Virginia, and West Virginia, have not yet conducted any virtual trials for asbestos cases, I expect this may change in the coming years. The technology will become more readily available for jurors and the courts, and the parties will recognize the efficiencies of doing things virtually that are not as easily done in person. Even if full trials aren’t conducted virtually, I could certainly see jury selection being done virtually. Bench conferences that occur during trial could also be conducted virtually. I think these approaches will be used regardless of the pandemic in the years to come.
Q: Are there special considerations for depositions conducted via video conference?
A: Virtual depositions, via Zoom and other video conference platforms, have been used regularly in asbestos litigation since April 2020. It’s important to note, however, that deponents in asbestos litigation tend to be in their seventies or older. They may have difficulty using video conference platforms if they’re not technically proficient or if they don’t have access to a high-speed Internet connection. So, we need to be flexible enough to accommodate the technology needs of this population of witnesses.
Often times in asbestos litigation, the court reporter can send the deponent a laptop with a hot spot connection built in. The court reporter can also provide some training to make sure the deponent is able to connect and use the platform.
Older persons, especially those with hearing impairment, may have difficulty hearing the other parties through their computers or mobile devices. In those instances, we have the witnesses call in to the meeting on a phone line, which usually yields better sound quality, and use the video conference platform for video only.
Q: Has the pandemic slowed the rate at which new asbestos cases are filed and pending ones are resolved?
A: The pandemic initially slowed the new filing of asbestos cases because courts were locked down with no access for new lawsuits to be filed. Limitations were also tolled by court order. Therefore, the new filing of cases was severely slowed between March and June 2020. Since then, court restrictions have been lifted, but we’re still not seeing as many new asbestos lawsuits filed. That is likely related to the lockdown in some part, as potential plaintiffs may not have as much access to plaintiffs’ lawyers or may not feel as comfortable reaching out to lawyers to pursue their claims.
Pending cases have been resolving in the jurisdictions in which I practice at a fairly regular pace. Even though trials have not continued since March 2020, we have the ability to work up the cases short of trial by having depositions and hearings – including motions hearings – virtually. There are some situations in which plaintiffs’ lawyers have not been able to get their cases worked up close enough to trial to get resolved because they have not wanted to take witness depositions virtually and, therefore, their cases have stalled. However, plaintiffs’ lawyers who have embraced the technology see their cases moving at a fairly steady pace, almost at a pre-pandemic speed.
See Malcolm's Q&A on asbestos litigation trends here.