Virtual proceedings are continuing even after Covid-19 has ebbed. And we have all heard that the "new normal" in our respective spheres and told how everything in the New World, post-pandemic, is grand and virtual ... and seeing people and doing things in person is so ... 2019. Well, not exactly. 

There is, after all, the Confrontation Clause (the 6th Amendment) that applies to criminal cases ... and, as per case law, to civil cases, as well. Parties are entitled to face opposing parties. This protection prevents all sorts of mischief. Some have argued that appearing via camera or computer works the same, but we know by experience that is really does not. And now, post-pandemic, we have been spared court battles over the issue of how far certain courts were going to go in this regard. 

Bottom line ... depositions and any hearing that requires extensive documentary evidence are difficult remotely. The flow of testimony is a challenge to manage, and the typically unwieldy usage of documents remotely shifts the advantage to the witness. And then there are witnesses who solicit aid from others lurking out of view of the camera. And then there are wifi freeze-ups, thunderstorms that knock out power, etc., and on it goes. Testimony, especially with documents (constitutional issues aside), especially with documents, is difficult to do remotely. 

But there are some things that work ... work even better ... in a remote setting. 

For instance, attending hearings remotely typically works very well. Displaying documents (typically fewer than in depositions) works far better than trying to question a witness with them. With judges, being on a screen or in person is the same, and there are no constitutional issues to proceeding in such a fashion.  Oral hearings are not even required in most civil proceeedings. Plus, travel time is saved. The benefit in out-of-town cases is significant. 

And then there are mediations. I started as a skeptic of virtual mediations. However, my experience has been that virtual mediations work pretty well. This is especially so when there are good lawyers and decision-makers with authority present. And interestingly, the virtual format tends to free up decisionmakers to attend who otherwise might not make the trip to a lawyer's office and a traditional mediation.  

Furthermore, virtual mediations allow parties to use those good mediators who live and work in other cities. So, this enables parties to hire more competent mediators, indeed, the best mediator for that particular case ... regardless of where the case is or will be filed.  And again, mediations work virtually because there is no cross-examination and are typically not document-intensive. 

So, I will gladly see you at the next virtual hearing or remote mediation.