00:03 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda, and I'll be your host. Well, welcome to another episode of the Effective Lawyer. Today we're going to talk about Everybody's favorite topic. COVID 19 or the coronavirus. We're coming to you on October 9, 2020, so you get an idea of the timeframe we're dealing with. And as always, I've got with me Joe Caputo and Chrissy Hagan. Hey, guys. 00:44 Speaker 2 Hey. How's it going? My name is Chrissy Hagan. I'm an attorney in our Denver office, and I handle the severe and catastrophic cases, mostly trucking and wrongful death cases. 00:56 Speaker 3 Hey, everyone, My name is Joe Caputo. I'm one of the partners here at Zynda Law Group, and I handle the severe and catastrophic cases for our firm nationwide. 01:06 Speaker 1 Well, and I am, of course, Jack Zinda. So, first, this Covid issue obviously has affected just about everybody in the world, but when was the first time you guys realized it was going to have a big impact on our practice? Joe, when did you. What was the moment? You're like, oh, man, this is going to be a big deal for how we practice law. 01:31 Speaker 3 Quite honestly, that moment didn't hit me until it affected something that I was doing personally. And then I kind of looked back and reflected and said, wow, I made this decision in this instance because of what was going on, and I don't see it changing, and I see what the next steps may look like. I. I had a deposition that I needed to fly out of town for really early in the morning, and I was looking, watching the news while I was getting ready to head to the airport. And I don't scare very easily, but it scared the hell out of me just listening to it for 15 or 20 minutes. And I said, you know what? I don't think it makes sense to get on this plane and then stay at a hotel for the next three days. 02:22 Speaker 3 I'm just going to see if I can do it remotely or come up with some other solution. That was probably the start or mid March. I think that the next week or two, chaos ensued from there. But that's when it really hit me is the first time it affected something that I was doing when I made the choice that, whoa, maybe we take a step back here and reevaluate. 02:47 Speaker 1 Yeah. What about you, Chrissy? 02:49 Speaker 2 I think it was also a circumstance surrounding a deposition, trying to get a deposition scheduled. And the other side, there's multiple defense counsel and they're doing everything they could to come up with other reasons to delay setting this deposition. And they said, well, with all the COVID stuff, let's just wait a little bit. So first I was, okay. A month goes by and you're like, well, we're not going to wait indefinitely. So now is really the time to start pushing alternative methods to take this deposition. I think everyone would probably be agreeable to doing it virtually. I know it's not what we're used to. We're gonna have to make some modifications. We can't just push out these depositions indefinitely. And it's a good thing we did. Cause it ended up taking. Or Covid, obviously, is still here. 03:34 Speaker 2 And so it ended up being a lot longer than I think a lot of people anticipated. So it was good to be able to. To think outside the box and get other ways to get these depositions on the books. 03:45 Speaker 1 Yeah. And I'll tell you, for me, it was when the NBA games got canceled. That was just such a surreal moment when they stopped. I think there was a game maybe in the Suns, where they stopped mid game and had everybody go home, which was just really insane to me. And I was like, this is going to have a major impact. And I remember when we'd had an all staff meeting where all the lawyers and attorneys. Well, lawyers are attorneys, lawyers and staff were all together. And were talking about going remote. And were gonna do a test run of it for a week and have certain people be remote, some people in the office. But we had to go 100% remote in 48 hours. And it was so surreal having about 60 people that I was talking to live in person. 04:35 Speaker 1 And that was back. I don't know, February timeframe. I think February or March. And since then, having not have seen more than two people in this office at the same time since then. But the NBA moment was a really surreal moment. That I thought, this is going to be a big deal. When you're dealing with something really scary or difficult, I think it's important to try to face your fears, whether it's on a case or in your business or in your personal life. So before you can face your fears, though, you have to identify them. So what were some of the fears that you all had with how it was going to affect your legal practice? I mean, of course, we all had our health fears. That goes without saying. 05:19 Speaker 1 But what were some of the fears you had as it related to the practice of law and us being able to help our clients? 05:26 Speaker 3 I think that there are two Industries that, at least before coronavirus, were decades behind where they needed to be. I think the medical industry is about 30 years behind technology, and I think the legal industry isn't far behind. And my biggest concern was that because we've just been doing things the way that lawyers have been doing them, and it's the only thing they know, that these cases were just going to sit and collect dust, and weren't going to be able to agree on a protocol or a program or a methodology that allowed everybody to, you know, at least our clients, to seek the justice that they so desperately need and want, desire. And to be honest with you, I think those fears were alleviated after about a month of everybody hoping that this just went away. 06:20 Speaker 3 But I. I think we made small strides, probably in April, collectively, is in terms of coming up with ways to overcome the hurdles about those cases sitting. And it's not perfect still, but I think that was our biggest fear, and definitely mine, is that until we figure out a therapeutics or vaccine, that these cases were just going to pile up. 06:47 Speaker 2 I had some concerns about initial client meetings because it's always nice to meet people in person, get the full picture of everything that they're going through. And I definitely could see a lot of people being hesitant to hire an attorney over the phone who they've never met in person. But luckily, everyone got pretty familiar with zoom technology or with FaceTime. And so were able to adapt in that aspect as well to where clients felt comfortable at least being able to see you via video when they're choosing who to go with after something so horrific has happened to them. 07:23 Speaker 1 Well, you know, and I was really worried that jury trials, and we frankly are facing this still, were going to come to a halt, and that was going to stop everything else. There's been some interesting moves in trying to get virtual jury trials. I know there's actually been some physical jury trials that have taken place also. But that, to me, is still my main concern, is that we need to get jury trials going again so people have their day in court. That's a big concern that I still have going on. One technique that I think is really useful is to do what's called fear setting, which is where you write out all of your fears that you have related to a topic. 08:02 Speaker 1 It could either be a case or your business or even your personal life on a whiteboard or on a piece of paper, and then just go down one by one and first look at what happens if this fear comes true. How big of a deal is it and some of them you'll eliminate because they're not even that big of a deal. And then the others, you just go step by step and go out. How can I mitigate this if it does come to fruition? Using depositions as an example on that, a fear was how are we going to do depositions if we can't be in person? So coming up with step by step ways to still have a deposition even though in person is not available. 08:43 Speaker 1 And, you know, that kind of brings us to some of the tactics that we've used on our cases. Let's jump into depositions and maybe start with preparing clients for depositions. How have you guys changed your approach to doing that since COVID 19 has. 08:58 Speaker 2 Hit, you know, instead of doing in person meetings for depo prep, a lot of those have been via zoom meetings. And then just kind of doing practice runs like the same you do in a conference room setting, except, you know, you're having them sit exactly where they would be sitting for the actual deposition, being really conscious of what's behind them in the background, what's going to be shown in the camera, making sure they're in a closed up area of the house where there's not a ton of interruptions, or because you have that more of a concern that they're going to have their cell phone right next to them and you're not going to see it and there's going to be distractions around them. So really helping them be cognizant of stuff like that, even though they're not in person with you. 09:41 Speaker 3 Yeah, I think you hit the nail on the head. You know, in deposition preparation before COVID I think were more substance focused. And so I've added a session to preparation for every single client because I still want to be able to get to the substantive portions. But before we can even get there, we're going to have to overcome some of the issues you touched on, Chrissy, about background and interruptions. But also, I mean, even though people have had to become more tech savvy than they were, not all my clients have computers. Not all my clients have computers with audio and video. So we've had to get creative to make sure that they have those capabilities early enough on to where it's not an impediment to actually having the deposition. 10:32 Speaker 3 I know that our office has purchased a couple of computers or shipped out technology to our clients because a week before the deposition I realized they don't have the Internet or they have a computer, but it doesn't have a Camera. And so working through those issues is going to create a lot of stress if you wait until forehand. The best practical advice that I could give is those clients that are in litigation where that's going to become a potential issue. Get out in front of it now before depositions are even being set up. Find out what technology they need to have what they have at home or at work or in a space that's available. And then interruptions are a big deal. My kids screaming in the background has just become a part of the deposition process for me. 11:26 Speaker 3 But you need to know what those interruptions are going to be for your clients when they're taking their deposition and if that interruption or hurdle at home is going to want to make you change your plans as to where they're at when they actually have their deposition taken. 11:46 Speaker 1 Those are some really great tips. You don't want someone walking in the background of your client's video deposition, you know, with no pants on or a crazy poster or three empty whiskey bottles back there. So background settings, key Internet hotspots can be a godsend. These are little devices you can send to a client that basically gives them wifi anywhere. And they're not very expensive. It's really the main cost is the monthly subscription cost of the little device. I know some court reporters you can pay to go and do a mobile depot. Those are really expensive from what I've seen so far. But technology is one aspect. You got to make sure and you got to do a run through. I think you are making a huge mistake. 12:35 Speaker 1 If you do a telephonic deposition prep session versus video prep session, you're just not going to get the same amount of things out of it. And think about, you know, in our firm, for example, we use whiteboards and these giant sticky notes to prepare our clients for their deposition. So there's ways you can display that in a video screen to use the same aspect of that prep that you would use with the client otherwise. So technology, I would say make sure videos, well, background setup, Internet hotspots. Good. And I would just like Joe said, add three depo prep sessions instead of your typical two like we normally do. And the third focus just on logistics, technology, and assume it all will go wrong because about a third of the time it does. 13:23 Speaker 1 I mean, even in our office, like sometimes I can't get zoom to work and I'm like, how is this possible? 13:31 Speaker 2 There's also some important considerations when you're scheduling the depot of the defendant. So you want to make sure that everyone has Agreed to be remote because you don't want a situation where you're remote. The defendant's in his house or in an office setting and the attorney's right next to him and you just can't see them on video or let alone anyone else in the room, you know, because it's hard to confirm who all is in the room. And so I started adding that as a depo question. You know, is there anyone in the room with you? Is there anything around you? Just to make sure there's no one. Like feeding them information was one of my concerns. 14:05 Speaker 1 That's a great. I hadn't thought about that. That's a really good point. 14:07 Speaker 3 You've gotta do that. I try to go through the, you know, there's a court reporter here, speak verbally. Huh. This can't be recorded thing pretty quickly with deponents. But if you're not adding, is anybody in the room, will you alert us if they're in the room throughout the deposition and you have any documents, audio or video that you're relying on, and if that changes, will you let me know? You're making a grave error and allowing them to utilize things that you would have no clue to expect. That's a really good point, Christina. 14:38 Speaker 1 I also think that when you're taking the defendant's deposition on figuring out how's the video going to be recorded is important. I know some court reporting companies have started trying to charge you like $1,000 to use Zoom's recording feature, which is nuts to me. How are you guys handling that issue? 14:58 Speaker 3 So it depends on the state. In some states you can record your own deposition yourself. And so all you have to do is put it in the notice. And so a lot of times we're using just another program like Mondavi or. I mean there's a bunch of different programs where you can essentially screen grab, but we can record our own DEP positions through Zoom, as long as we put it in the notice. Now, on states that don't allow you to self record, so to speak, you may have to think outside the box or, you know, it's a great opportunity at a status conference, if you have one, to try to work out those details ahead of time. 15:45 Speaker 3 Especially in light of COVID I don't think that it makes sense that judges would force you to spend 1500 extra bucks per depot just because we don't have the ability to do this in person. 15:58 Speaker 1 You know, one tip you can do on that. If you have a difficult defense lawyer that's trying to force you to spend the money on the videographer is say, that's fine, but just we want to put on the record that if we're successful in this case, that the defense is going to pay for that cost. And that usually changes their tune pretty quickly if they know they're going to have to foot the bill in the end. In a lot of states, you can get that case expense back and whether or not you get the video recording costs back or up to the judge. So that's another way to put pressure to force their hand on that issue. 16:36 Speaker 4 Zynda Law Group is a plaintiff's personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. Over the last several years, we have paid millions of dollars in joint venture counsel fees to the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zynda Law Group on, please reach out to us at 800-863-5312 or email us@infodferm.com and we can set up a time to discuss your. 17:18 Speaker 1 Jumping over to mediations, which is another big part of our practice. How have you guys approached doing remote mediations and what are some of the tips that you would give folks on that front? 17:30 Speaker 3 Mediation, I think, is more difficult to do remotely than depositions. I think that there are a lot of ways you can fix some of the issues that you would have doing a deposition remotely. But mediation, you need to be attentive, right? When you think about mediation, you're always in a conference room. You're usually there with the client themselves, and now they're in the comfort of their own home and they're distracted. And for both sides at mediation, it's a lot easier to click a button to say, no, I'm not really interested in negotiating further and problem solving a solution as opposed to the physical act of walking out. 18:12 Speaker 3 I think that the main focus that we've had in squaring away our clients for mediation is making sure that wherever they're at, it's a place where they're going to have their full, undivided attention on the task at hand, just like they would if we didn't have Covid. And then secondarily, I also think that you need to have a way to back channel with the client separate and apart from the Zoom application or blue Jeans or whatever you're using to have a very frank conversation that you can have with the client, separate and apart from any platform you're using, where somebody else. What about you, Kristy? 18:56 Speaker 2 Yeah, that's a good point. And I think I've just been kind of muting everything when it goes. When you're talking about a mediation and then calling the client on my cell phone separately, making sure they step into a different room of the house, just taking all these added precautions on the off chance they didn't hit the mute button or something like that. But I think were also talking about how it probably makes sense to do even a whole separate zoom meeting if that's something, because that makes it easier. You have the zoom with your client that's completely confidential. And then you have the one with the mediator that you can put on pause and mute when you want to have those one one conversations with your client. 19:33 Speaker 1 You can also use a lot of the programs, have what's called a lobby feature where someone has to ask permission to come into the meeting again. So you have the mediator wait in the lobby until you give them permission to come in or her to come into the room. The other thing is, if you're feeling comfortable with it and you have really great social distancing protocols in place, we've had a couple times where we have our client come into the office and go into a conference room. In our office right now there's only three people out of 100 that are actually in the office itself. The office has been sterilized. They're sitting in the conference room by themselves the whole time. And the attorney is in another conference room, another part of the office that's a way to control the setting. 20:18 Speaker 1 It's not so much about being in the same room with them, is ensuring that they're focused, they're not distracted. We're controlling the technology and we're making sure everybody's safe. Now, you have to be extremely careful in this. I mean, you don't want your client or yourself getting Covid because you're trying to set up an in person mediation. But there's ways that you can do it safely if you have really great protocols and you have a very uncrowded office. So that's another tip that I think can be useful, especially in larger cases that you're trying to get resolved. 20:51 Speaker 3 That's a good point. 20:52 Speaker 1 What about when it comes to ensuring that the adjuster is going to be focused at mediation? Because I know that's always a Fight. They never want to bring the adjuster or the decision maker, and we just have to force them to come. Or we say we're not going to mediate. How do we ensure that the decision maker on the defense is engaged and isn't just got us checked out the whole time? 21:12 Speaker 3 I think it's way more difficult than it used to be, and it used to be really hard to do that. You know, a couple of tricks that we've used in mediations done remotely is making sure that we have the name of the adjuster who's going to be present at the time that we're scheduling the mediation, and something in writing indicating that we want her to or he to be there for the entirety. I've also, in a recent case that we resolved about a month ago, said, I want to give an opening and I want to give it to the adjuster, which kind of made them come. It is tougher, though, right, to make sure that they're not only available, but not available for five minutes and then ghosting you and available by phone for the next couple of minutes. 21:58 Speaker 3 But I think if you have good communication with the mediator about expectations and the defense attorney about expectations, that will incentivize them to bring the decision maker to the mediation. 22:11 Speaker 1 Yeah. And I think talking to the mediator during the mediation and confirming, is the adjuster engaged? Are you talking to them or is it just the defense lawyer? And you got to be prepared to walk away if they're not being meaningful in their negotiations, because you don't want to give away something if they're not negotiating in good faith. So I'd be really careful on that front. The other thing we've started doing is trying to get all of our documents over to them and ahead of time, including our opening statement in the mediation itself. And so we've gone to doing video openings that then we're sending ahead of time. So the adjuster reviews them even before the mediation, which can be useful. 22:50 Speaker 3 I think those have been super powerful. I know. Chrissy, you've really taken the reins on putting a lot of those together. What do you think about that idea? 22:59 Speaker 2 I agree. Because it doesn't do either side a whole lot of good to get to mediation and present your awesome case. You want to give them enough time to really realize that it is a big case and that they need to come to mediation prepared with all the authority they need to get it resolved for what your case is worth, instead of everyone getting to mediation and saying, okay, well, I have to go get authority for this. So let's reconvene another two months or whatever it is. 23:28 Speaker 1 What about going to court during COVID How has that gone for you guys? And I've seen in my practice and on the cases I've been working on a real difference in the approaches of some courts. I know there's a court in Texas that requires in person hearings. They're not doing remote at all as some sort of political statement. I think there's other courts that are not letting you walk in the courtroom at all. So what are you all seeing in your hearings that you're having, and what are some of the tips you would have? 24:01 Speaker 2 All of mine that I've done during COVID have been virtual, and there's different methods. So some have been solely telephonic. A lot of them have been via webex, where it's video and audio. And I mean, it seems like it's saving attorneys a lot of time as far as traveling to and from the courthouse. But then they're definitely taking a little bit longer because you inevitably have those technical glitches one side or the other. So that's been a little frustrating. But overall, if it's via zoom or something that everyone's familiar with, they tend to be pretty streamlined. 24:36 Speaker 1 One tip on the technology front is you can set up your video camera to where you're looking directly into the camera, if you put it the eye level of your screen. And that's a way to seem to the court that you're talking directly to the judge. Opposed to how it usually looks is you're looking up or down because you're trying to look at the screen at the same time. 24:57 Speaker 3 No, that's a good point. I'm going to change the positioning of my bike. 25:02 Speaker 2 Me too. I was thinking of that. 25:05 Speaker 1 You know, the other thing too is you got to remember to dress appropriately. You got to wear a suit. You got to be smart. You got to treat just like it's a hearing anywhere else. How are you all handling exhibits that you're trying to produce at a hearing or deposition? Because I know that can be challenging because you've got the physical copy and you need to get in front of the court or you need to present it to opposing counsel at the depot. So how are you guys handling exhibits? 25:28 Speaker 3 It just depends. In a hearing situation, I'm probably calling the court coordinator to figure out how they want them ahead of time and if I'm able to share my screen through whatever program that they have. And so that's going to Be important. And I would tell you in the hearings I've had remotely, I'm not using zoom. I'm using a webex or something that I'm not typically using for deposit. Get on the webex program or whatever platform the court is utilizing and don't have the hearing date be the first time that you're using it. As far as depositions, what we're doing is a half hour before the deposition, we're forwarding all of the exhibits to the court reporting service who will forward them to the opposing attorney. Now, I'm not producing exhibits in the exact form that I'm going to disclose them in. 26:23 Speaker 3 So if, you know, if there's a two page document inside of a thousand pages of discovery that I'm going to make an exhibit, I'm sending them as an exhibit a thousand pages of discovery so that they're not able to kind of see where I'm headed ahead of time. And then if there are some exhibits that I wouldn't want them to see before they're actually shown, I will call the court reporting service beforehand, say, I'm going to take a break. An hour in, I'm going to shoot you a couple extra exhibits and after that break, go right into some of the details that I want to hit. But I would tell you, don't send any gotcha moment exhibits way ahead of time, obviously. 27:04 Speaker 3 But there's a good way to communicate with defense counsel and the court reporting service for your typical exhibits that you're trying to use. 27:14 Speaker 1 And something that we're playing with at our firm is setting up offices that are going to be specifically for remote hearings and remote depositional. So the attorney just walks in and it's pre set up and ready to go. Obviously with COVID protection standards in place. You know, another thing is, I think what all we're all hitting on is you've got to do a dress rehearsal of this stuff. If it's the first time you've done it is at the hearing or depot, you're going to screw something up. And I think, Joe, probably why you thought of saying that ahead of time is you probably sat down and thought, what is this deposition going to be like? I don't want to give away the farm. And came up with that tactic of not giving your exhibits out right away. 27:55 Speaker 2 Yeah, don't let the other side push you on what you have to do. We get a lot of defense attorneys saying, we need your client's email right now, a week before, so the court reporter can send the zoom Invitation. And no, you don't send it to us. We'll make sure our client gets it. Same thing with exhibits. There's no rule that you need to send those on to them weeks in advance. Be strategic about it and know the rules. 28:21 Speaker 1 That's a great point too is know the rules and know how to handle that stuff. So what do you guys think the future is of jury trials? This is kind of the big issue. And I know there's a lot of different thoughts on a virtual or Covid proof jury trials. What do you guys think jury trials look like in 2021? 28:39 Speaker 3 I think that there's not going to be too many of them. I hope that I'm wrong. I think that there's going to be kind of an opt in approach in a lot of different places where everybody's going to have to agree. And whether it's for practical purposes or strategic purposes, especially the bigger the case, I think the less likely they're going to want to take the chance because it's the unknown. Right. And I think everybody has a small fear of the unknown and doesn't want to make a catastrophic mistake. And so I, I think it's going to be tough for people to take the leap, but I'm encouraged that there are people trying to problem solve their way through it to make sure that we're able to hopefully get the court system wheels back spinning. 29:29 Speaker 1 Joe has the pessimistic view. Kristy, what do you think? 29:34 Speaker 2 I have the optimistic view. I'm hopeful that in person trials will keep going. I know I've heard of a few happening with social distancing guidelines in place in Colorado at least. I know in Texas it seems like there's a stronger push for virtual trials, which obviously I just don't think can be as effective as in person, especially on the plaintiff side. But I'm hopeful because it just seems weird to me that you'd be able to enforce social distancing and have restaurants and daycares open, but not a jury trial. Even if you're just limiting it to one jury trial happening in that courtroom a week or something like that. I think there's ways to still make sure that those are happening and that our clients are getting their day in court. 30:20 Speaker 1 I completely agree. And I think it's important that us as lawyers try to push for those innovative things to happen because the worst thing that can happen is nothing happens. And I think whether it's virtual trials or social distancing trials, I think Getting jury trials in general is the most important concept and us trying to help the court system do it because we all play a part in that. And I think sometimes we're officers of the court and we play a role in helping the court system be successful. It's not like the judges are on an island. And unfortunately a lot of our judges, which are amazing judges, are not technology specialists. And so I think you trying to help your local jurisdiction and figuring these things out could be really beneficial. 31:03 Speaker 1 But on the most part, I think I'm optimistic that we'll get there. Well, guys, this has been not necessarily the most uplifting conversation, but it's been a lot of fun. Hopefully it was informative. Some people that are struggling with these same issues. Before we go, I always like to give a book recommendation. And my book recommendation this week is the Andromeda Strain by Michael Crichton. So you can see that it could be worse and it's not so bad. Really interesting book about Ebola. So check that out. Guys, thank you so much for being here today. I appreciate it and have a lot of fun. Thank you for taking the time to listen to this episode of the Effective Lawyer. If you enjoyed this podcast, please take a moment to rate it 5 stars and leave us a review. 31:50 Speaker 1 To get notified about new episodes that are upcoming or have been released, go to zdfirm.com/podcast Sign up for our mailing list.