March 20, 2020
Most Courts have taken a hiatus for an unknown period of time in response to the COVID-19 crisis for most (but not all) trials and live hearings, but nonetheless, litigation work with the team at Finney Law Firm still marches on. (For example, emergency Probate guardianship hearings still are proceeding and criminal proceedings cannot be stayed indefinitely due to Constitutional speedy trial requirements).
Components of litigation
Litigation at the trial level typically consists of four components, (a) the initial pleadings (Complaints, and Motions to Dismiss or an Answer), (b) discovery (consisting of document production, written interrogatories and requests for admission), (c) motion work and then (d) pre-trial and trial work.
Certainly the initial pleading stage and the discovery can be completed without any person-to-person interaction.
For the initial pleading stage, we can exchange documents and emails and interview the client over the phone or on a web chat. We then prepare the pleading and can, in most jurisdictions, file it electronically or via fax. If not, it can be mailed in.
Typically, the first phase of discovery is written discovery, wherein each side asks the other for relevant documents, paper and electronic, and certain questions in the form of interrogatories and “requests for admissions.” This can all, of course, occur, without any personal meetings. Again, we can gather documents from the client electronically and can interact over the telephone or computer.
Depositions are somewhat trickier, but we have consulted with our Court Reporter, and they assure us that both in-state and out-of-state depositions can be conducted using Skype, Teams or Zoom.Com without any two people being in the same room.
Thus, each component of discovery can be “socially distant” and not endanger any of the litigants, their counsel or the Court reporter.
Again, motion work is mostly in writing. In federal Courts, evidence at the motion stage is admitted via a Declaration that does not need to be sworn before a notary public. The attorney does need to maintain an original signature of the Declarant in his files, but that can be mailed between the client and counsel. Audio-visual materials may need to be physically filed with the Court, but again that can be addressed through the mails. State Court evidence is admitted via Affidavit, which means it does need to have a notary public personally witness the signature, but there are notaries still working throughout the COVID-19 crisis.
Certain motions by statute or by Court Rule require evidentiary hearings or in-person argument (Restraining Orders, Rule 11 Motions, and hearings on Motions to Set Aside Settlement). However, other than limited statutory exceptions, litigants do not have a right to have an in-person appearance before a Judge on motions. As a result, the trial Courts could proceed with their work by either eliminating hearings on motions entirely or calling for motion hearings to be held via web or telephone.
Many cases are resolved on motion work, including Default Motions, Motions to Dismiss and Motions for Summary Judgment. If so, the case is “over” or on to the Court of Appeals (see below) without any person-to-person contact.
Thus, all motion work could easily be handled without person-to-person contact or even live court appearances.
Pretrial and trial
Herein lies the rub. Ohio law and the US and Ohio Constitution require that all trials — civil and criminal — be conducted in public and that means in-person attendance. If this crisis progresses, we suspect that our government officials may feel compelled to allow both litigants and observers to appear via web cam. (Surprisingly, that change was just recently more or less unilaterally-declared by the Ohio Attorney General for meetings of public bodies in Ohio.)
But until that change occurs, litigation could well be jammed-up indefinitely at the trial stage. And because it will require Constitutional action, that could take some time and procedural maneuvering as well.
Appeals work at the Ohio and federal Courts of Appeals and Supreme Courts historically is mostly done via paper filings, appellate briefs and occasionally motion work. But by tradition, not by any constitutional or statutory requirement, Appellate Courts have held oral arguments on the merits of an appeal. This is not a right of litigants and therefore the tradition of oral arguments can be waived or modified (such a conference calls or web cams) by the Courts, and if this crisis is protracted, we expect them to do so.
First, most litigation work that does not require the Judge’s involvement (hearings on motions and trials) can proceed in typical fashion with attorneys working from their home or office. We expect that if this crisis extends into summer, the Courts will free up the logjam by modifying rules to allow at least motion hearings via conference call or web-conferencing. If the crisis extends into the fall, the courts may need to consider evidentiary matters coming into the record in ways other than in-person testimony, including Affidavits, video depositions and Skype, Teams or Zoom video conferencing.
For more information on moving forward with your commercial litigation project, please fell free to contact Brad Gibson (513.943-6661), Casey Taylor (513.943.5673), or Christopher P. Finney (513.943.6655.