In Florida, Administrative Order SC 20-23 Amendment I – Comprehensive COVID-19 Emergency Measures for Florida State Courts provides guidance to attorneys and clients and importantly suspends jury trials in civil cases until July 2, 2020. Now the courts are exploring pilot programs for virtual trials in some Florida Circuit Courts.
The Florida Supreme Court has recognized that certain non-essential judicial proceedings, including ADR, are amenable to being conducted remotely. To this end, some ADR providers, including this author, are providing virtual mediations using Zoom or other platforms. As trial dates become harder to secure, ADR assumes a more prominent role and MED/ARB procedures may foreseeably increase. In MED/ARB, the same individual hired to mediate the case will typically also serve as the arbitrator. There are some important ethical considerations and disclosures that must be provided to participants so that this process can unfold as desired. The Florida Bar and courts have articulated concerns over MED/ARB proceedings unless disclosures are comprehensive, and address the problems of non-admissible and privileged information acquired by the neutral during mediation. These concerns can be addressed in advance and required disclosures made at the inception of the MED/ARB process.
The MED/ARB process boasts three great benefits. There are cost savings, in that the parties need not retain two neutrals or “reinvent the wheel.” Second, the parties have the luxury of hiring a neutral with both mediation training and subject matter expertise. Third, the litigants may resolve their dispute in private. There are hybrid versions where the mediator and arbitrator jointly conduct fact-finding proceedings, and if the case is not resolved by mediation with the first neutral, the second neutral assumes control and makes an arbitration award. There are other variations beyond the scope of this article.
Apart from an increase in ADR, there are several unintended consequences from the pandemic. Everyone, including neutrals, attorneys, judges, and judicial staff, will necessarily become proficient in conducting proceedings by remote means. Second, courts, attorneys, and litigants will need faster and more reliable internet connections with broader data capacity. This could lead to a resurrection in the demand for fiber-optic cable, as we saw before the tech crash in 2000.
Third, filing, scheduling, and hearing procedures will (should?) be standardized statewide between and among the counties. It would be hugely inefficient and frustrating for lawyers and legal assistants if they face counties operating on different online hearing platforms (e.g., Zoom, WebEx, Microsoft Teams, etc.). Fourth, there are already anecdotal stories of law firms considering permanent remote staffing, and thus an anticipated substantial reduction in needed office space as leases expire. Commercial space should get cheaper.
If filing and hearing attendance is virtual, and thus more efficient because the necessity of travel and in-person attendance at hearings is reduced, the byproduct should be more filing and a greater demand for hearing time. When efficiencies in electronic environments occur, one would expect greater use of them. Hence, virtual access potentially increases courthouse traffic and the burden on the judicial staff to conduct hearings and resolve motions. Additionally, there may be new challenges for the clerks of court asked handle internal and external IT security issues.
The unavailability or virtual attendance of juries in civil cases will likely lead to more bench trials in civil cases, and greater use of private judges or retained mediators to resolve cases. Also, private litigants may see lower overall litigation costs because hearings should occur sooner, and attorneys will not incur travel costs nor be stranded at the courthouse awaiting their hearing time.
The availability and cost of legal services, private judging, virtual arbitration services, court reporters, and other virtual service providers should improve. As the virtual market expands, price competition will be beneficial to consumers, but prices will slowly begin to escalate as we see contraction in the virtual marketplace for legal services and judicial administration. IT platforms will need to become more robust and uniform, and there will likely be only one or two market leaders for virtual legal services and virtual judicial administration (e.g., the Coke and Pepsi of online services).
As we face hurdles and problems transitioning to a virtual legal process and environment, we may also witness some favorable unintended consequences in terms of increased efficiencies, lower legal costs for the public, and better public albeit remote access to the courthouse. The new normal may not be all that bad.