As the post-pandemic new normal reshapes the legal profession, not to mention the larger world, Maryland judges and lawyers have grown accustomed to working remotely and may be wondering if virtual litigation could be here to stay.
That’s why this month, the MSBA Solo & Small Firm Section hosted a panel discussion that explored the benefits and drawbacks that accompanied the rise of virtual hearings, depositions, and mediations since COVID-19 forced the courts to lean more on technology in an effort to stave off the spread of disease.
A half dozen Maryland legal experts dove in head first to these topics and explored what it could mean for the future of the profession during a Sept. 14 Legal Summit Series: Trials and Tribulations.
Many Maryland practitioners and judges have now seen first-hand remote proceedings work well and are keen on it, including the panelists who shared best practices and tried to spark conversation on ways our profession can embrace virtual proceedings in the long term while sidestepping potential pitfalls.
“We’ve put this together both to look back at the past 18 months but also to look forward to the future of practicing law in Maryland,” said Susan Land, attorney at the Ruben Law Firm and panel moderator.
Focusing on the lessons learned from a hasty roll out that was substantially improved over the year-and-a-half since, the panelists prodded one another on virtual litigation topics for nearly two hours, exchanging feedback they gleaned from experience.
Panelists contemplated possible rule updates to streamline hearings and establish standards for when remote appearances are appropriate and address procedural matters for the exchange of documents that will be used in a virtual hearing.
Remote hearing procedures could be better addressed in rule amendments, according to one panelist, attorney Thomas Valkenet of the firm Young & Valkenet.
Brandy Peeples, a Frederick-based solo practitioner who manages a virtual law office, shared with the panel her perspective as a litigator who has long leaned on technology to streamline her practice. As someone who already operated virtually most days, the pandemic only deepened her commitment to maximizing the agility of her law practice.
Voices from the bench were also supportive of more remote hearings and included MSBA past president and Baltimore District Court Judge Mark Scurti as well as retired Baltimore Circuit Court Judge Martin Welch. Though retired from the bench, Judge Welch still regularly oversees pretrial matters and mediates some cases, including by virtual means, he said.
Remote hearings can expand access to justice by helping parties with physical or financial obstacles attend hearings, according to Judge Welch. Judge Welch also raised concerns that remote hearings potentially violate the Americans with Disabilities Act if it hampers a party’s ability to hear the proceedings.
Mediator and arbitrator Jeff Trueman and David Roberts, a director of sales at Veritext Legal Solutions, rounded out the panel, adding valuable perspectives from allied professionals in the legal field.
At one point, moderator Susan Land pressed the panel to articulate what matters should, or shouldn’t, be handled remotely.
The panelists generally concluded that virtual hearings in some form are likely here to stay, at least for many pre-trial, non-evidentiary matters.
In matters where credibility is a factor, such as evidentiary hearings, virtual questioning should be viewed as an inappropriate substitute for an in-person examination, the panelists said. They unanimously agreed that jury trials shouldn’t be conducted remotely.
The vast majority of pre-trial matters such as scheduling, calendar calls, and arguments on legal issues, however, can usually be resolved more effectively by virtual appearances, panelists said.
Valkenet, who said his practice is limited to civil non-domestic cases, estimated that evidentiary hearings comprise less than one quarter of all judicial business in his cases.
Overall though, the panelists mostly touted remote technology’s ability to help streamline busy court dockets and cut down on both time and travel expenses for litigants.
The webinar is available online for MSBA members. Two hours of CLE credit are available.