Winning a trial in a complex commercial case is challenging. Managing the logistics of discovery, preparation, and trial presentation is daunting. One might think that litigating such a case in the midst of a pandemic would prolong and complicate the process. If the past 18 months have taught us anything about adapting to courtroom advocacy in the age of COVID, the opposite may be true.
One case demonstrates the benefits. Our firm prepared, tried and won a case in arbitration in just eight months — a dramatically shorter span of time compared to traditional courtroom litigation. From initial engagement to the award, the process was more manageable and economical than expected, largely due to advances in technology and the necessity of the situation.
The commercial case was complex. The plaintiff was a Michigan-based global exporter of specialized vehicles; the defendant was an out-of-state engine assembler. The claims were for breach of contract, tortious interference, conversion, slander of title and claim and delivery. The parties’ dispute dated back a few years, and the business records and communications exchanged by the parties exceeded 75,000 pages. The firm became involved when the pandemic closed the doors to the traditional courthouse for most litigants.
Over those eight months, the matter was first mediated and then arbitrated (as required by the parties’ contract). Multiple mediation sessions resulted in an impasse, prompting arbitration proceedings that included the requisite discovery battles, critical depositions, a lengthy dispositive motion hearing and a multiday trial — all conducted remotely via Zoom and the telephone.
The potential exposure was significant. The final and binding arbitration award mandated the return of several million dollars’ worth of vehicle equipment and parts and the payment from the defendant of monetary damages, costs and attorneys’ fees in excess of $1.4 million in cash, with a final award just over $5 million in total value.
Hitting the ground running
The team was made up of veteran litigators experienced in courtroom advocacy, but nothing prepared them for pursuing complex litigation during a global pandemic. They needed to teach themselves how to litigate a complex business case remotely, and that education started on day one. Immediately, and without a playbook, they were on a fast-track arbitration schedule.
The client, a relatively small business, urgently needed to recover their vehicles and parts in the defendant’s possession and find another engine assembler. The economic hardship of the pandemic was already affecting their business, and this dispute was posing an existential threat.
Although the lawyers were confident in their advocacy skills, they could not afford to be bogged down with technical difficulties. Time was of the essence.
The first task was to ensure access to a critical and reliable internet connectivity, not only for the convenience of video and telephone communication but also to safeguard data transmissions. For this, the firm relied on an outsourced IT business partner.
Next, the firm had to conduct extensive discovery in record time. The client’s representatives, the defendant’s representatives, other witnesses and thousands of business documents and files were located across the globe, from Paris to China, from California to Michigan. Much to the parties’ surprise, the discovery phase was relatively smooth and extremely efficient.
Coordinating the live testimony of witnesses located in faraway places who could not make the trip to Detroit due to public health and travel restrictions became much simpler. Accommodating time zone differences proved to be the only real difficulty.
Thanks to the web and the cloud, logistical obstacles were non-existent. Depositions and trial examinations were initiated with people around the world using just a few mouse clicks and keyboard strokes. Videoconferencing platforms allowed the display of relevant records easily and clearly on screens, visible to counsel, witnesses and the arbitrator simultaneously. In no time, the firm’s lawyers went from being the Luddites kids make fun of to magicians able to conjure people, documents and images out of the ether.
The actual arbitration was a combination of analog and digital. Because the arbitrator and each side required digital and hard copies of all exhibits, the parties had to generate and exchange both electronic and print versions. On one team, two trial attorneys and a paralegal each participated from their own offices. The other side’s two lawyers participated from separate offices in different states. The arbitrator was in Detroit, and the several witnesses were, of course, remote.
Say what you will about Zoom-fatigue but using remote video screen share features to introduce and review the exhibits with the witnesses, opposing counsel and the arbitrator proved easy, accurate and consistent. Before the arbitration, all exhibits were organized on computer desktops so they were readily accessible.
For those trying to seek a psychological edge and throw up smokescreens, there are opportunities to do that in virtual proceedings. Counsel, a party or a witness looking to gain any advantage may suspiciously or conveniently experience “a technical issue” or complain the text on the screen is “too small to read.” Ensuring everyone has hard copies of all the exhibits thwarts such delay tactics. A keen arbitrator should quickly pick up on that gamesmanship and call out the ploy. Thankfully, the arbitrator proved very tech-savvy, experienced and knowledgeable about keeping a remote complex commercial case on track, fair and thorough.
Another eye-opener about virtual litigation is the absence of courtroom drama. With no in-person interaction and therefore fewer theatrics, lawyers must focus even more on strategy, technique and acumen. While “virtual trial skills” will become the subject of law school and continuing legal education courses, telling the client’s story as convincingly as possible will always be the primary focus of your trial strategy.
Technically and ethically competent
Much has been made of legal ethics rules requiring lawyers to be technically proficient. According to ABA Model Rule of Professional Conduct 1.1:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
To drive home the emphasis on keeping up with technical advancements, the comments to the rule state:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (emphasis added)
Critics of the rule and similar versions across the country argue the language is vague, but there will come a day — perhaps sooner rather than later — when failing or neglecting to understand the use and application of technology in the practice of law will be grounds for grievances and malpractice claims.
Remote proceedings are, ultimately, time-efficient. With nowhere to be other than in front of our computer screens, travel to and from client meetings, mediation sessions, depositions, motion call, hearings and trial were removed from the equation.
Also eliminated (or at least significantly reduced) was the inevitable downtime associated with many of the in-person proceedings and conferences. Consider the witness in Paris who participated in the arbitration via teleconference. Instead of planes, trains, cabs and hotels, his only inconvenience was the few minutes spent in Zoom’s waiting room after the completion of a prior witness’s testimony. Virtual litigation’s cost savings are obvious, resulting in fewer fees billed to the client to resolve a dispute much more quickly.
Remote litigation does not lend itself to all types of matters or proceedings, and matters involving juries require a separate analysis. Often, there is no substitute for in-person interaction. But experiences and success revealed the efficiencies, cost savings and advantages of virtual litigation. This streamlined process for clients, litigators, mediators, arbitrators and judges will become commonplace rather than a short-term measure during a temporary crisis — especially as technology continues to improve.
Richard E. Rassel III is a partner with Williams, Williams, Rattner & Plunkett, P.C., and focuses his practice on business, real estate, and land use litigation and transactions. Jeremy M. Manson is a senior attorney with the firm and devotes his practice to commercial and real estate litigation.