Now into the second year of the pandemic, we can start to see how the virus shutdown has changed the way medical malpractice lawyers work and will likely work in the non-pandemic future. Like it or not, the future has been thrust upon us, as this pandemic changes how medical malpractice lawyers work.
Now, of course, almost everything is “Zoomed.” Meetings with clients, attorney conferences, depositions, mediations, office meetings, and yes, even trials. Our firm is involved in our first “all Zoom” trial, and it’s a fascinating experience even for an observer like me.
Our conference room is now arranged like a studio, with three screens — including one huge one – and hi-tech microphones, and special lighting. The three attorneys working on the trial are all there, and are on camera the entire time – though only one is unmuted at a time.
All of the normal jury activities play out on the screens, because everyone is in different places. This includes the jury selection process, where attorneys get to ask questions of the prospective jurors. Jurors are in the homes, the judge is in her courtroom, and the attorneys are in their offices. I don’t know where the court reporter is, but perhaps at home as well.
To some extent, the process is slower, but a real benefit is how much lawyer and paralegal time is saved by not having to drive to and from the courthouse, find parking, and lug your boxes of paper through the courthouse metal screeners. No longer is there a need to set up clunky technology in the courtroom in order to use power-point or show enlarged records or exhibits on a large screen.
The witnesses, including the many expert witnesses on both sides, will testify virtually as well, from their respective locations around the country. This was a trend that was just starting in pre-pandemic times, but it has obviously accelerated this past year. It will also mean a decrease in cost.
In the past, most attorneys wanted their key experts to testify live in the courtroom. That meant hours of arranging and re-arranging flights and hotel rooms, and thousands of extra dollars. It is also much easier to make last-minute scheduling changes when two hours of an expert’s testifying time is now done from his office or home.
To those who have tried cases for decades in real courtrooms, the changes are unsettling. Being able to move around the courtroom and physically relate to the jurors and witnesses was part of the lore of trials. Attorneys usually would question their witnesses while standing at the far end of the jury box, away from the witness, so the witness could make eye contact with jurors while answering questions. How do you make eye contact with a screen?
Some judges In King County are favoring the new “Zoom” trials, in part because it makes the jurors’ lives so much easier. There is some discussion of even continuing such trials when the virus risks subside.
That surely won’t happen in the more rural counties, but even those counties are now seeing the efficiency of using technology in the courtroom. In pre-pandemic days, some judges in smaller counties would require attorneys to appear live in the courtroom, even for a short trial setting hearing or motion.
I think the lessons learned from doing depositions, mediations, and court hearings by using Zoom or equivalent technology will continue. The days of a gaggle of attorneys flying to Chicago for a two-hour deposition of an expert may be over. It’s likely that insurance companies now will be less likely to fund this kind of junket for their attorneys as they have learned that facts and opinions can effectively be learned through the use of video depositions.
To a significant extent, the use of technology can pare down the high cost of handling medical malpractice trials on the plaintiffs’ side. The experts will still charge high fees for their time, but now their involvement requires less time. The costs involved in your attorney traveling around the country for depositions will be reduced. And bringing all of the experts to the courtroom to testify may now be the exception, not the rule.
