After two years of the Covid-19 pandemic, things are looking optimistic in California.  Covid case numbers and hospitalizations are declining and mask requirements are loosening.  For many, myself included, this is great news and a much needed “return to normal.”  At the same time, however, the pandemic brought some changes to our lives that we may not be ready to give up, including remote work.  Many attorneys discovered they could easily work from home, and by eliminating a commute, they had time to exercise or spend time with their families, which has become invaluable.   For myself, once my children returned to school in-person, I was able efficiently to work from home and found the time avoiding commuting made me happier.  I had more time to devote to work, exercise, cooking, and my family.

During the pandemic, litigation adapted and went remote.  In my October 2020 blog post, Litigating During a Pandemic, I discussed how litigation was adapting to the pandemic and how depositions, mediations, and court appearances were operating on a remote basis.  Now that we are two years in to the pandemic and restrictions are easing, what has changed?  Is litigation still remote?  Are attorneys longing for in-person appearances?

For the most part, depositions, mediations, and court appearances have continued remotely.  First, whether court appearances are remote depends largely on the court and judge, and for mediations and depositions, they depend on opposing counsel.  For example, Los Angeles Superior Court has eliminated social distancing and restored in-person access without capacity limits in all Los Angeles County courthouses and courtrooms, but attorneys may appear remotely for all appearances.  In the United States District Court for the Central District of California, in-person appearances are required unless the judge permits otherwise.

Second, many attorneys, including myself, have found remote depositions and mediations to work just as successfully as in-person appearances, and have additional advantages.  Since the pandemic started, I have taken or defended about a dozen remote depositions.  While at first, everyone was concerned about witnesses cheating – by having notes out of view, texting with someone, or having someone else present – I have not had those concerns arise in any deposition.  Rather, we can ask the witness to pan the camera around the room and ask questions to confirm no notes or others are present.  In addition, with the zoom pinned on the witness, I can focus on cross-examining the witness – alone in my office – just as I would sitting across the witness in a conference room.  When defending a deposition, I felt just as comfortable objecting to questions by zoom and was able to check in with the witness by phone during breaks, just as I would if alone in a conference room.

Third, mediations have also continued to stay remote, largely for the same reasons as depositions.    Mediations require the appearance of the parties, attorneys, and insurance representatives or other financial decision makers.  Mediations typically last all day, sometimes well into the evening.  However, usually there is a lot of downtime as the mediator is speaking with other side.  When mediations are remote, you are free to go on mute and turn off your camera, and turn to other work or activities.  When the mediator is ready, they will notify the attorney and everyone will come back.  Remote mediations allow everyone to have more control over their time – whether that is spent doing other work, making phone calls, or walking the dog during the break.  Also, all-day in person mediations can be very hard on the parties who have other pressing job duties – by allowing them to appear remotely it is easier on the parties and less burdensome to schedule.  Also, it is a large cost-savings for parties and insurance carriers to avoid travel time.

I have participated in several mediations since the pandemic.  While I had a few remote mediations that settled that same day well before dinner time, I also had a couple of remote mediations that did not reach an agreement by the end of the day, which sometimes occurs even when mediations are in-person.  Those cases eventually settled within weeks or months after the mediation thanks to continued involvement of the mediator.  However, perhaps those cases could have resolved sooner in an in-person mediation, but it is hard to know.  While zoom mediations are certainly convenient, for some cases, having everyone in a room physically can increase the commitment and engagement and lead to a settlement sooner than later.  It is important to understand the nature of the case, the personalities of the attorneys and parties, and preferences of the mediator, to evaluate whether to have a remote or in-person mediation.  In searching for a mediator recently, the majority of mediators we contacted were only offering zoom mediations.

Finally, remote depositions and mediations offer other advantages. They are easier to schedule – no one has to travel for the appearance, which also saves costs.  Being in your own office also has advantages.  If you need additional documents, for example, they are easily accessible.  Also, it is important to be mindful that even if you are comfortable being with others in a small room (masked or unmasked), others may not be quite ready for that environment or be at high risk for Covid and desire additional precautions.

While being on zoom for 8 hours a day in a deposition or mediation can be tiring, the flexibility for witnesses in scheduling, cost savings, and equal effectiveness of the deposition will make zoom depositions and mediations commonplace even if pandemic restrictions recede.

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Photo of Alison Kalinski Alison Kalinski

Alison Kalinski is an experienced litigator representing independent schools and public agencies, including cities, counties, and special districts before state and federal court, arbitrations, and administrative agencies.  She represents clients on claims of harassment and discrimination, whistleblower retaliation, wage and hour violations, wrongful…

Alison Kalinski is an experienced litigator representing independent schools and public agencies, including cities, counties, and special districts before state and federal court, arbitrations, and administrative agencies.  She represents clients on claims of harassment and discrimination, whistleblower retaliation, wage and hour violations, wrongful termination, failure to accommodate, defamation, First Amendment, and due process violations from employees.  In addition, Alison defends schools in litigation on student issues, including disability discrimination, failure to accommodate, breach of contract, and defamation claims. Alison has argued before state and federal courts and the California Court of Appeal and has obtained a workplace violence restraining order to protect employees.

Alison Kalinski also regularly advises independent schools, including religious schools, nonprofit organizations, and public agencies in matters pertaining to employment and students. Alison is a trusted advisor to employers in all aspects of employment issues, including the hiring and termination of employees, the interactive process and leave requests, discrimination and harassment issues, assisting with investigations, overtime, and drafting employee handbooks and agreements.  In addition to employment advice, Alison counsels schools on student and parent issues, including bullying, student discipline, accommodating disabilities, enrollment agreements, student handbooks, parent and tuition disputes, and subpoenas. Alison especially enjoys working with schools and nonprofit clients by helping them meet their legal obligations while achieving their mission and maintaining the values of their school and organization.

Alison is also an experienced presenter and regularly trains clients on preventing discrimination, harassment, and retaliation in the workplace, accommodating disabilities in the workplace, mandated reporting, and other employment matters.

Prior to joining Liebert Cassidy Whitmore, Alison practiced as a litigator in the New York City offices of two international law firms before relocating to Los Angeles.  At her prior firms, Alison represented large private employers in class action litigation arising from gender discrimination and wage and hour matters, and obtained a full dismissal of all claims in both actions.

Committed to pro bono work, Alison obtained cancellation of removal under the Violence Against Women Act for a victim of domestic violence and sex-trafficking and obtained asylum for a refugee from Cameroon who was tortured for being a homosexual.

While in law school, Alison served as managing editor of the Tulane Law Review.  Upon her graduation magna cum laude, Alison clerked for the Honorable Steven M. Gold in United States District Court for the Eastern District of New York.  Alison is admitted to practice in California and New York.