Zooming Toward Innovation … Or Not?

Yes, I know the saying that the eyes are the window to the soul, but are the eyes sufficient, do they tell me enough?

In addition to zooming more than I ever wanted to zoom, I am reading about pandemics. I know I am not the only one. The topic fascinates me, and the books try to help me understand what is going on and why. My list includes two novels: Station Eleven by Emily St John Mandel and The End of October by Lawrence Wright, and two works of nonfiction, The Great Influenza by John Barry and Pale Death by Laura Spinney. Suggestions for others gratefully accepted.

Part of my fascination is imagining what our world will look like once the lockdown is behind us and we get on with whatever the “new normal” may be. We dinosaurs remember the years before 9/11 when we could accompany family and friends to the airline gate to see them off and be at the gate to welcome them home. Does anyone else of similar vintage remember those days? Yes, kids, there was such a time. Gone forever.

My ADR provider has had weekly zoom meetings to update its panel on the state of the courts, when they might reopen and what they will look like when they do. The provider also talks about when their offices might reopen, still to be determined, and what steps will be taken to ensure everyone’s safety and well-being, from the parties and their counsel, to the neutrals, to the staff. Given that we are in Los Angeles County, face masks and social distancing will be the way of the world for some time to come.

So, the question then becomes how to conduct mediations? Option A: Go into the office and know that I can’t shake hands, have to sit at least six feet away from however many counsel and parties there are (that can be a logistical nightmare depending on how many) and be unable to get “up close and personal” when it’s needed. Several times when a case has settled at mediation either the plaintiff or defendant or both wanted to hug me in relief because the case is finally over. (At least I think that was the reason.) Obviously, personal contact is verboten.

How much facial expression can I see if there are masks covering everything but the eyes? Yes, I know the saying that the eyes are the window to the soul, but are the eyes sufficient, do they tell me enough?

Option B: use Zoom or whatever other method to conduct mediations. What do you think about that? Would you use that method or prefer to mediate face to face, to the extent possible these days? A recent unscientific poll showed that judicial officers favored Zoom over any other remote online platform.

Right now, I think that mediating via Zoom or whatever other platform is safer from a health perspective. Upsides? No need to commute to an office, no need to worry about face masks, and no need for social distancing from your client and the mediator. Downsides? You and your client are not in the same location, so you can’t deliver that gentle (or not so gentle) kick under the mediation table when your client says more than he should. Security issues that have arisen with Zoom bombing seem to have receded.

Sponsored

From this mediator’s perspective, depending upon how the video is positioned, Option B doesn’t necessarily see body language. Fidgeting, leg jiggling, and other physical tics below the neck may offer clues that aren’t picked up otherwise.

And then there’s the age-old issue — older than mediation — getting the parties and counsel to agree to use this technology to try to get the case settled. Just as expected, some counsel are comfortable using it, while others are fearful. Is the case at the point where it is ready to settle and are parties and counsel ready? What’s the cost/benefit analysis of waiting some lengthy period of time for a trial date? From a plaintiff’s perspective, the answer is usually “there is none,” while a defendant’s perspective is often “we have the money, let’s keep it until we absolutely have to let it go.” Other defendants may roll their eyes as the legal fees continue to mount and would rather pay the plaintiff something than continue to pay their attorneys.

Even when the state courts do finally get back in business, Zooming will be the way of the legal world for many things. Case management conferences and motions are already being heard remotely and have been prepandemic. Jury trials? A Texas court has conducted a nonbinding summary trial on Zoom, with the hope that the case will settle at mediation. Even if nonbinding the jurors’ decision may make settlement easier as it indicates how a full-blown trial might play out.

There’s been so much talk about legal innovation and how to apply it to the practice. Here is a perfect opportunity to see if legal innovation works in the context of a jury trial. California has had a summary jury trial procedure, but it’s been barely used. Given our herd mentality, I am not surprised. Thoughts of a lesser verdict, if one at all, and potential malpractice liability clutter the mind.

Will many people physically show up for jury duty in these pandemic times? It’s not just going through security, but what about temperature checks, people who are asymptomatic? Who will want to sit in a jury assembly room with hundreds of others, when you are clueless as to whether they are taking (have taken) similar precautions to stay safe? Just the thought of using a restroom in a courthouse may well be taking your life in your hands. The less said, the better.

Sponsored

So someone must lead the innovation, to take the risk, to try something new. I think Zoom jury trials may be the coming wave. How else are we going to get going again?


Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.