Almost a year into this pandemic we can confidently say that things have certainly changed in the world of business litigation. The changes impact jury trials, depositions, and the entire manner in which commercial disputes are litigated.
“I want my jury trial”!
Well, you’re going to have to wait. With most commercial disputes, the parties (if they want) are entitled to a trial by jury. In the business litigation arena, this has very much changed. Most courts now have a temporary hold on jury trials. The main problem isn’t necessarily the trial itself. The problem is jury selection.
During jury selection, there can be up to 100 jurors in a room sitting closely together waiting to be selected. These jurors are interviewed by the Judge and/or the attorneys for the parties to determine what the jury panel will look like. This can take several hours and, as indicated above, this requires all the prospective jurors to sit “patiently” in close proximity to one another waiting to be interviewed for potential jury selection. This is not happening right now, for obvious reasons.
It will be some time before commercial lawsuits are resolved on a regular basis by juries. Criminal trials (where the criminal defendant is absolutely entitled to a trial by jury) are the ones that will take place first. The courts will need to work through the backlog of criminal jury trials before even thinking about having jurors sit through civil trials.
The impact of this, obviously, is delays in the resolution of cases. The backlog is now growing for civil cases (such as business disputes) to be resolved. To combat this, Judges are strongly encouraging litigants to permit the cases to be resolved with the Judge sitting as the trier of fact (in place of the jury). Judges are also asking parties to consider Alternate Dispute Resolution programs (“ADR”). ADR can include binding arbitration or non-binding mediation. This occurs where the parties pay for a third party (often a retired Judge) to help assist in the resolution of the matter. We have certainly seen an increase in the use of ADR to resolve business disputes.
How Business Cases Are Litigated Now.
In a word, technology. Fortunately, most courts in this geographic area have fairly sophisticated electronic filing systems in place. If they didn’t before the pandemic hit, they certainly do now. This enables the parties to file papers electronically (without the need to go to the courthouse and file the papers in person). This process is easier, more stream-lined and, in many cases, less expensive for the attorneys and the litigants. This also enables adversaries to receive immediate notice of filings that are made in a commercial dispute. This is certainly a more efficient way to handle cases.
What Does a Deposition Look Like Now?
Before the pandemic, depositions typically took place in person. This meant that all the parties, litigants and attorneys, were present in the same room for the deposition to take place. This enabled the attorneys to get a clearer view as to the witnesses’ credibility and the ability to withstand questioning. This is an extremely important element of trial preparation. This is the biggest change that we have seen post-pandemic because now most depositions take place remotely.
Attorneys, witnesses, and court reporters are now separated. The witness appears on a computer screen for questioning. This makes it more difficult for attorneys to weight the credibility of the witness. This is a significant change for all parties in a business dispute.
The benefit of remote depositions is that the depositions are now more efficient and cost-effective. Depositions can happen faster and cheaper. This is good for all litigants and, especially, for the clients who are paying the bills. It will be interesting to see whether remote depositions continue post-pandemic.
Robert Burke is a business litigator and trial attorney with MacElree Harvey, Ltd. in West Chester, Pennsylvania. Mr. Burke focuses his practice on complex commercial litigation and estate and trust litigation. This includes trial and appellate work in federal, state and international courts. He regularly presents matters before alternative dispute resolution panels and frequently lectures on trial tactics, practice, and procedure. He has argued before the Pennsylvania Supreme Court and the United States Court of Appeals in both the Third and Sixth Circuits.
Contact Robert at [email protected] or by calling 610-840-0211.