Mediator Steve Schulwolf continues to delve into COVID-19’s impact on the legal profession. Episode 7 featured professor Julia Simon-Kerr and discussed how COVID-19 presents opportunities for the legal system to improve its assumptions about credibility and demeanor. In Episode 8: What’s Going on out There? Mr. Schulwolf talks with Riley Safer Holmes & Cancila’s Matt Fischer, a national trial attorney who has appeared in courtrooms in over 30 states, about the various approaches being taken by different jurisdictions in their efforts to restart trials and hearings during the pandemic. Mr. Fischer suggests that trial lawyers need to throw out their old playbook, be nimble and adapt to different jury pools, difficulties with voir dire, Zoom-bombings, socially-distanced courtrooms that more closely resemble a PTA meeting and other imperfect trial conditions. Mr. Fischer provides examples of potential pitfalls for Zoom and in-person trials. For example, the two discuss a motion for mistrial filed in a California Zoom trial after the Plaintiff was left alone with the jurors and had the opportunity to cordially discuss Zoom backgrounds with them. Mr. Fischer laments the lack of a communal experiences for online jurors and other new challenges such as jury instructions specifically addressing the care of their pets.
The two discuss how judicial hearings have become less formal as the Judge no longer looms over the proceedings and likely empathizes with the difficulties everyone has while working from home. While Mr. Fischer’s preference is to return to in-person trials, the two conclude that Zoom mediations are here to stay and further discuss attorneys’ expectations from mediators including preparation and taking the necessary precautions to insure that mediations remain confidential.
Finally, the two discuss some common misconceptions that can impact case valuations as Mr. Fischer agrees to play a game.
Tune in here to see if he won and otherwise listen to his insights.