During the COVID-19 pandemic, many of us adapted to remote work in order to promote social distancing and slow the spread of the virus. All manner of court operations were conducted virtually, including hearings, oral arguments, trials, and other functions. Now that the pandemic has passed, most people are returning to in-person operations, but some still attend hearings and other appearances remotely. In my own practice, I am seeing situations in which one person attends a function in person while another attends remotely, which creates a host of issues.
I first learned the downsides of remote attendance when my adversary was appearing in person long before the COVID-19 pandemic. At that time, my client was residing in a foreign country, and my adversary was being paid to travel to the foreign country to attend a deposition. However, my client did not want to pay the huge cost of having me travel to the foreign country, and he requested that I attend virtually.
This did not go over well. My adversary was able to make observations of my client that I was not, and it was difficult for me to see if any conversations were happening off of the video. It was also difficult to communicate with my client since the two of us were not in the same room. This showed me that, when possible, you should appear in the same place as your client during depositions or at least be with your client if your adversary intends to depose your client in person.
The next time I had to deal with a situation in which one attorney was attending a matter virtually and another was attending in person was during a motion hearing right before the COVID-19 pandemic. My adversary asked to participate in the conference telephonically, and I appeared in court in person. While I was in court, I could tell that the judge found my arguments to have more impact, since they were presented in person rather than over the phone. While my adversary was making a point, I was able to flip through some documents and show the judge a document attached to my motion that directly contradicted what the lawyer said. I definitely think that being in court in person helped me achieve a favorable result for that motion.
Of course, attorneys cannot always appear in person, even if their adversary appears in person. Also, during certain court functions, it might not be important to appear in person for a matter even if all of the other attorneys do. When I was handling a certain kind of mass torts cases, I would routinely attend discovery conferences in person even though many attorneys participated remotely. At the conferences, the court simply set dates for discovery, asked the parties about the status of the case, and made other nonsubstantial decisions about the matters that were being conferenced. There was really nothing that an attorney would miss out if they just listened to the conference or participated remotely since the conference could not have a major impact on the case.
However, some functions are more important, and if an adversary intends to appear in person, the other lawyers should, barring major circumstances, consider appearing in person. This includes trials, motion hearings, and anything that can have a significant impact on a case. In some situations, courts may want to recognize that parties and counsel may have unfair advantages if one side is appearing in person while the other side is appearing virtually. Under the right circumstances, it might make sense for the court to order that all parties and counsel appear virtually or in person so that no side has an unjust advantage over someone else in litigation.
All told, just like most workplaces are adopting hybrid operations in the post-COVID world, many courts are facing situations in which some stakeholders appear virtually while other stakeholders appear in person. Litigants and lawyers should be aware that this can present advantages and disadvantages, and in some situations courts may need to step in to level the playing field
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at firstname.lastname@example.org.