Rick Marcus on Post Pandemic Procedure

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The COVID pandemic has upset everything, including civil litigation. The courts and litigators are beginning to come to grips with it. Some say things will never be the same again.

The rulemakers have begun to focus on these issues. In part, that’s because back on p. 671 of the CARES Act, Congress directed the federal rulemakers to “consider rule amendments . . . that address emergency measures.” Although the most serious difficulties have arisen in criminal cases (consider how the Confrontation Clause works when in-person encounters are hazardous, and how the Speedy Trial Act works when jury trials are impossible), civil litigation has also been affected.

I’m aware of these developments because, as Reporter of the committee that develops amendments to the Federal Rules of Civil Procedure, I have been working since March on the rulemaking effort directed by Congress. Meanwhile, courts across the country have adopted special procedure to cope with the virus; it may be that the existing rules are flexible enough to deal with an emergency.

But this effort has brought forth a pervasive expectation among bar and bench — “We’ll never go back to doing things the old way.” So without regard to what rules say, litigators will likely henceforward see important differences in their practices:

Depositions — The old in-person depositions shut down in mid-March. But depositions did not stop. Instead, remote depositions became the new order of the day. Technology now permits something a lot like a “traditional” deposition with all the participants in different locations. There are some challenges, such as presenting exhibits to the witness, and giving the lawyer representing the witness time to object before the witness blurts out an answer. But in federal court the parties can stipulate to handle these problems, and the judge can order a remote deposition if the parties don’t agree. Given the worries of travel, as well as the costs to clients, this learning may cause litigators to decide not to go back to the old way even after the pandemic ends.

Remote testimony — The same technology that enables remote depositions can also enable remote testimony “in court.” So court trials by Zoom (or similar means) may become a reality. They have already occurred in some places. Particularly with older witnesses, or those with weakened immune systems, that may be the only safe way to testify for a while. And perhaps it is also a better substitute even after things return to “normal” for many witnesses.

Alternative methods of service — California authorizes service of the summons and complaint by U.S. mail on a defendant outside the state. Federal courts have sometimes granted orders authorizing service by Facebook or Twitter. The pandemic not only makes in-person service more difficult, but also makes it hazardous. It may be time to look again at the mode of service.

Jury trials — Voir dire may be easiest (and safest) by remote means. Most say that jury trials themselves cannot be conducted online; jurors must be in the courtroom (socially distanced). But the need to use masks, particularly for witnesses, might foster the use of remote testimony even in jury trials. Judging credibility might be better with a witness on a screen than a real person wearing a mask over most of the face.

No doubt there are myriad other areas in which the pandemic has changed litigation practice, (such as reliance on online hearings in place of hearings in court), and those new practices may also endure after the pandemic is behind us. Rule changes that adapt to or adopt the new practices may be in order after the dust settles. For the present, however, this unprecedented challenge means that litigators must adapt on the fly.

May you live in interesting times.

Richard Marcus is Distinguished Professor of Law and Horace O. Coil Chair in Litigation at UC Hastings College of the Law. Professor Marcus’ writing has focused on litigation-related topics. He is a lead author of the West casebooks Complex Litigation (6th ed. 2015) and Civil Procedure: A Modern Approach (7th ed. 2018). He is also the author of several volumes of the Federal Practice & Procedure treatise (known as Wright & Miller) and serves on a variety of committees dealing with practice issues. Since 1996, he has served as Associate Reporter to the Advisory Committee on Civil Rules of the Judicial Conference of the U.S., and has had a principal role in drafting amendments to the Federal Rules of Civil Procedure over the last 20 years, including particularly amendments to the class action rule and the rules of discovery.