COVID-19 is rapidly changing our court system and the rule of law. Almost every day courts are issuing new administrative orders. I will continue posting as new developments unfold. As it stands, all state and federal courts are processing cases but there are several limitations.
The most significant development is the push to allow witnesses to be sworn in, and testify, remotely. There is also an effort to allow witnesses to sign declarations, bypassing testimony altogether. (I provide links to these orders below.) Allowing evidentiary hearings with witnesses appearing remotely is a profound change from standard face-to-face witness examination. Examining witnesses in person allows a lawyer to observe non-verbal cues and utilize changes in space to enhance the effectiveness of the exam. Numerous trial workshops and books address this. Think of the famous scene from A Few Good Men (see the end of this video followed by this one) where Lieutenant Daniel Kaffee uses spacial distancing, and more, to crush Colonel Nathan Jessep on cross examination. Online witness examinations will destroy the ability to utilize certain techniques. But as I was taught, great lawyers find new ways to innovate and serve their clients. I suspect advances in technology will create opportunities for new techniques to emerge as well. For example, technology has allowed us to conduct background checks during jury selection. Over the years, I’ve done many depositions remotely and have already developed several techniques suited for this format. I’ll continue to brainstorm and roll play as the transition to online trials and depositions advances.
Federal Court – Southern District of Florida: