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Covid-19

The Effect of COVID-19 on Existing Litigation

Litigators and litigants across the country will need to be prepared for a changing litigation landscape in light of the novel coronavirus (COVID-19). Most courts have delayed their current trial settings. Courts across the country are also exercising their discretion to modify existing scheduling orders, hearing settings and other deadlines to reduce the risk of COVID-19 transmission. This client e-alert provides resources on: (1) the various court orders that impact scheduling, hearings and trials for existing litigation; (2) guidelines on filing a motion for continuance in light of COVID-19; and (3) a step-by-step guide to effectively conduct a videoconference deposition and hearing.

Landscape for Existing Litigation In Light of COVID-19


Shortly after Texas Governor Greg Abbott issued a declaration of a State of Disaster in Texas, the Supreme Court of Texas and the Court of Criminal Appeals of Texas issued their First Emergency Order Regarding the COVID-19 State of Disaster on March 13. The main highlights of the Order, which applies to all 254 counties, empower the courts to do the following:

  • Modify or suspend any and all court deadlines from the date of the order until 30 days after the Governor’s State of Disaster has been lifted;
  • Allow or require teleconference or videoconference for hearings, depositions or proceedings, but not jury trials. Testimony provided at a hearing or deposition can be given the same treatment as sworn testimony;
  • Proceedings can take place away from the courtroom, as long as they are in the proper venue; and
  • Extend statute of limitations in any civil case no later than 30 days after the Governor’s State of Disaster has been lifted.

To date, appellate courts, criminal courts, civil courts, justice of the peace courts and other courts have chosen to apply the above order in a variety of degrees, and adopted different standing orders or notices as a result.

  • Northern District of Texas – Trials through May 1, will be continued and reset to another date determined by the presiding judge. The shift in trial dates does not impact other deadlines, although attorneys are encouraged to contact the presiding judge should they seek to modify any other deadlines. While the order notes that judges may continue to hold in-person hearings, proceedings and conferences, counsel has the opportunity to seek relief from those matters by appropriate motions.
  • Eastern District of Texas – All civil and criminal jury trials through May 1, will be continued and reset to another date determined by the presiding judge. Courts have the discretion hold bench trials, in person hearings and to schedule conferences. Telephonic and video conferences are welcome, as deemed appropriate by the individual court.
  • Western District of Texas – The Western District of Texas shall continue all “civil and criminal bench and jury trials scheduled to begin on any day from March 13, through May 1.” Due to the extremely heavy criminal caseload, however, the Western District will continue grand jury matters until further order. Judges may continue to hold in-person hearings, sentencing proceedings and conferences, subject to relief by counsel.
  • Southern District of Texas – All criminal and civil jury trials in the Houston and Galveston Divisions will be deferred through May 1.
  • U.S. Bankruptcy Court for the Northern District of Texas – The courts shall request the parties postpone any hearings and trials that are set through May 1. In the event postponement would cause undue prejudice, the courts shall endeavor to limit the number of persons in the courtroom.
  • Dallas County District Courts, County Courts, and Justice of the Peace Courts – All jury trials are cancelled through May 8.
  • Tarrant County – There will be no new jury trials between March 16, and April 20, for criminal district courts, county criminal courts, county courts at law, civil, family, probate and Justice of the Peace courts. Additionally, the judges have decided to reduce dockets during that timeframe. Trials and jury service that have already started will continue as scheduled.
  • Collin County Courts – All non-essential court operations in Collin County have been postponed until April 1. Essential court proceedings are identified on the court’s website, but range from temporary restraining orders to writs of habeas corpus.
  • Ellis County District Courts and County Courts at Law – All civil, criminal and family jury trials set to begin before April 30, 2020 are postponed. Each court’s respective court coordinator will work with counsel to reschedule agreed jury trial dates.
  • Dallas District Court of Appeals – The Court re-opened on March 17, and oral arguments are scheduled to proceed beginning April 1, until further notice by the Court.
  • Fort Worth District Court of Appeals – Oral Arguments from March 17 through March 31 have been cancelled, and will not be rescheduled. Those cases will be submitted without oral argument, because “oral arguments are not considered essential in-person proceedings.”
  • U.S. Court of Appeals for the Fifth Circuit – Cancelled in-person oral arguments scheduled for March 30 – April 2. The Court may consider telephonic argument for cases, which the court will promptly post as audio files on its website.
  • American Arbitration Association (AAA) – No hearings will take place in AAA or ICDR (the International Centre for Dispute Resolution) hearing facilities between March 20 and April 17. Hearings can proceed in other locations if the involved parties comply with state/federal/city regulations and minimize the risk of transmitting COVID-19. Alternately, the AAA encourages video and teleconferencing if desired.
  • FINRA Arbitrations – FINRA administratively postponed all in-person arbitration and mediation proceedings scheduled through May 1. This decision does not impact other case deadlines unless the parties jointly agree otherwise.

A comprehensive list of closures for Texas courts can be found on the Office of Court Administration’s website for information on closures or delays reported to the OCA. https://www.txcourts.gov/programs-services/court-security/emergency-court-preparedness/closures/. This site is changing daily and prudent practice calls for checking the website of the individual judge, reviewing any applicable standing orders and calling the court staff to confirm availability.

Motions for Continuance and Conferencing Procedure

Various special court orders, including the Special Order by the Northern District of Texas, have requested that litigants work together to resolve scheduling disputes, conflicts over deadlines and to promote the health and safety of the general public. A litigant who is seeking a motion for continuance should consider citing the specific special order or notice that is in effect for a certain court. The litigant should also consider providing specific factual reasons why a motion for continuance is warranted. Getting a continuance may not be a straightforward matter, however. For example, on March 12, Chief Judge Rodney Gilstrap of the Eastern District of Texas denied a joint emergency motion for continuance due to COVID-19 for the case styled Saint Lawrence Communications, LLC v. Amazon.com, Inc. and Amazon.com, LLC, Case No. 2:19-cv-00027. The court was confident the parties would be able to use “technological innovations” to move the case forward. The court further cited that it needed “specific concerns backed by firm restrictions from a governmental/public health level or actual exposure” before granting a continuance for witness depositions. Thus, be wary of using COVID-19 as a blanket excuse. Attorneys are expected to find a way to keep the world turning.

Guidelines for Video Depositions and Videoconference Hearings

Discovery is one of the most essential phases of litigation and arbitration, where the parties learn each others’ strengths and weaknesses and pin down key witnesses on their allegations. While attorneys, parties to lawsuits, and witnesses may need to avoid being in one room with other people, that does not mean depositions are not possible. As referenced in the Supreme Court of Texas and the Court of Criminal Appeals Emergency Order, all courts must “[a]llow or require anyone involved in any hearing, deposition or other proceeding of any kind — including but not limited to a party, attorney, witness or court reporter . . . to participate remotely, such as by teleconferencing, videoconferencing or other means.”

Not surprisingly, videoconference depositions require more planning than a traditional in-person deposition. The first step in the process is choosing a court reporting service with experience in video teleconferences. Attorneys should pay close attention to the technological aspects of the services provided, so they will not be surprised during the deposition. For example, some of these systems include real-time transcriptions, some videos may lag and other systems may allow for only a limited number of participants who are able to see the video and hear the audio. After confirming the court reporting service, the attorney will need to be sure that he or she can properly log in to the applicable system. This will also give the attorney the opportunity to ensure the camera on his or her laptop, computer, or tablet is capable of being used in this process. Ideally, this is all done at least one day beforehand so that there are no disruptions on the morning of the deposition.

The attorney will also want to have a reliable speakerphone at his or her desk. There are two reasons for this. First, some of these video conference services suggest you use the speakerphone for audio so it frees up processing resources on your computer, potentially allowing for better video quality. Second, the speakerphone also serves as a back-up in case anyone has technical difficulties or needs to leave the room during the session.

There are additional practical considerations when taking or defending a deposition that is being recorded by video. Most importantly, the attorney should always remember that his or her conduct and tone of voice will be recorded for all, including the judge and jury, to hear at a later time. Additionally, if the deposing attorney wants to use a specific document during deposition, the attorney should upload the proposed exhibit to the website ideally a day in advance to ensure the documents are available. Some court reporting video programs allow a deposing party to upload documents such that they will not be visible to the opposing party until the deposing party chooses to present the exhibit to the witness. Exhibits can be uploaded during the deposition, but doing so may take additional time. In any event, an attorney should want to coordinate ahead of time with the court reporter to ensure they understand how to use the program and download the documents. The deposing attorney may also consider sending a binder of exhibits in advance of the deposition as a fail-safe measure.

Likewise, the Texas Supreme Court is permitting telephonic hearings and hearings by video for cases pending in state courts. Specifically, the order mandates that Texas courts must “[c]onsider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing or other means.”

Regarding federal cases, the Administrative Office of the U.S. Courts sent guidance to federal courts across the nation, urging them to remain flexible and encourage methods to reduce travel by out-of-town lawyers and witnesses. Chief District Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas has supported this effort, by noting that we all should take advantage of video conference technology or different kinds of ways to present arguments and information, without physical presence, if and when possible.

Certain software conferencing programs, such as joinme.com or zoom.us, allow participants to engage in videoconferencing, produce exhibits, and also make revisions on documents, such as proposed orders. As with all technology use, it is the litigant’s responsibility to be well-versed with the program before the hearing to make sure there are no technical difficulties during the allotted hearing time. Additionally, litigators should coordinate with court staff regarding all use of technology so the presentation is aligned with the court’s preferences. A litigant should also decide if a record is needed for the hearing, and notify the court clerk regarding the need for the record so the court staff can prepare accordingly.

Participating in video hearings presents both new challenges and opportunities. Preparation will be increasingly important for attorneys who are not accustomed to participating in hearings remotely. First, the attorney should reach out to court personnel in advance of the hearing to learn about the particular court’s technological capabilities and weaknesses to know what is possible. For example, if the attorney is not able to display documents on the screen, it would be prudent to send a notebook to the court in advance of the hearing. Planning for logistics such as this can only benefit an attorney’s presentation, helping the attorney to more effectively represent his or her client.

Please note that some courts are more advanced in technological capabilities than others. Some smaller or rural jurisdictions may not be able to upgrade their technology to make videoconferencing possible. An attorney should check with each individual court coordinator as far beforehand as possible to assess the court’s capabilities.

The next few weeks — maybe months — will force many firms and courthouses to accelerate their adoption of technology. We anticipate that litigators and courthouse staff will go through a learning curve in the near future, and courthouse preferences will likely evolve over time. For better or worse, litigators will need to be nimble and prepared to persuasively represent their clients, whether in person or through a computer screen.