Litigation During the Pandemic, 1120 SCBJ, SC Lawyer, November 2020, #36

AuthorBy M. Dawes Cooke, Jr.
PositionVol. 32 Issue 3 Pg. 36

Litigation During the Pandemic

Vol. 32 Issue 3 Pg. 36

South Carolina BAR Journal

November, 2020

The American College of Trial Lawyers’ Interim Guidelines for Best Practices

By M. Dawes Cooke, Jr.


By now it belabors the obvious to say that the COVID-19 pandemic has changed the practice of law. It has changed the ways people interact in all walks of life, including the administration of justice. Recognizing these changes are both immediate and long-term, the American College of Trial Lawyers (“the College”) established the Task Force on Advocacy in the 21st Century “to develop and make available the College’s expertise on the issues that will confront the administration of justice in a post-pandemic world, in particular those issues that impact the discovery component and trial of civil and criminal cases and oral arguments before appellate courts.”[1]

Since it was commissioned in April 2020, the Task Force has published eight Interim Guidelines outlining best practices for conducting litigation in the post-pandemic world. The most recent, entitled “Overarching Principles Applicable to Civil Trials,” was approved by the College’s Board of Regents in September. Through these guidelines the College seeks to develop best practices to maintain public trust in the integrity of the judicial process while adapting to the logistical challenges created by the global health crisis. In its Statement of Purpose, the Task Force observes: The pandemic has “shed light on how dependent the administration of justice is on the ability of human beings to interact in person with one another. It is fundamentally true that absent good cause (trade secrets, matters involving minors, etc.) the justice system should be completely transparent: people cannot be expected to have confidence in a justice system that is hidden from real-time public view. But it has become apparent that the justice system needs to figure out how to balance the need for transparency with the need to be able to reduce in-person interaction while administering justice.”[2]

On June 1, 2020, the Task Force published its first five guidelines. These include “Remote Video Depositions and Examinations for Discovery,” “Mastering Zoom Advocacy,” “Conducting Remote Hearings by Use of Remote Video,” “Conducting Nonjury Trials by Use of Remote Video,” and “Conducting Appellate Arguments by Use of Remote Video.” On July 17, 2020, the Task Force published “Issues to be Considered When Preparing for and Conducting a Civil Jury Trial During the Pandemic.” On July 29, 2020, it added “Constitutional Protections Implicated by the Reopening of Criminal Courts in the Face of the COVID-19 Pandemic.” The guidelines can be accessed on the College’s...

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