Altered Dynamics in the Legal Realm as Covid-19 Takes its Toll
An expert panel convenes to discuss the role of counsel as the litigation and investigations landscape changes
COVID-19 has disrupted the way we do just about everything. With so much uncertainty looming on the horizon, it is hard to predict what long-term consequences this pandemic will have in the legal realm.
There are two things that we can be sure of as we move through this rapidly-shifting business environment, where regulations and mandates are quickly changing. First, litigation and investigations will increase – we are already seeing a significant uptick. And second, processes that we rely upon to manage them, redesigned for our new socially-distanced reality, will look quite different when compared to their pre-COVID versions. For these reasons, it would be wise for counsel to re-examine and adapt their strategies in order to best serve clients and live up to new regulations.
To that end, H5 partnered with Marcus Evans to deliver a timely webinar entitled “COVID-19: Altered Dynamics Demand Close Attention By Counsel In An Evolving Landscape,” on September 17, 2020.
(Available on demand here.)
The webcast featured a panel moderated by Julia Brickell, executive managing director and general counsel at H5. Featured speakers included Daniel Cooper, president of Cooper Strategic Consulting; Meredith Friedman, associate general counsel in U.S. Litigation and Regulatory Enforcement at HSBC North America Holdings, Inc.; Gejaa Gobena, partner at Hogan Lovells; and Alanna Rutherford, vice president of Legal Global Projects and Technology at Visa.
Ms. Brickell set the stage with a stark description of COVID-19’s devastating impact so far and the effects of the pandemic on ongoing operations within the legal realm. There is a rapidly evolving landscape of increased litigation and investigations bumping up against remote technologies, closed or modified courtrooms, disoriented juries—not to mention shifting attitudes of litigants, counsel, and judges thrown off balance as they try to navigate new realities. This is an unprecedented situation that calls for enhanced readiness strategies, revised technology protocols, and importantly, well-managed expectations between in-house and outside counsel.
Leading off with considerations of government involvement in business arrangements related to the pandemic, panelist Gejaa Gobena discussed government relief programs as a subject of litigation. Gobena pointed out that with over $1.5 trillion in government spending and distributed loans, investigations are sure to follow. He also noted that the manner in which these loans were distributed and used would become a key issue in litigation going forward. In his view, companies working across multiple regulatory environments run far greater risks, and need to be very vigilant of their team’s practices in order to remain compliant.
Meredith Friedman zeroed in on the challenges faced by financial institutions during the pandemic, drawing on her experience at HSBC. “Supervision is a huge part of compliance, and a huge part of the regulatory scheme,” Friedman pointed out, a responsibility difficult to coordinate remotely. She also touched on how the pandemic fundamentally altered day-to-day business as they grappled with the new normal.
“A new way of supervising individuals using Zoom was something that we had to grapple with very quickly, and we had to do it in a manner where we could assure all the regulators that we were doing it sufficiently,” she said, noting that teams necessarily communicate differently over an electronic platform than they would in person. In fact, she noted that this is true of counsel as well; they now must consider what lawyer may be more effective in a trial over Zoom than in person. Friedman closed by elucidating the difficulties that conducting investigations on Zoom brings, from document preparation to coordinating participation.
Central to the investigation and regulation process is the court system, which has been dramatically impacted by COVID-19. Alanna Rutherford noted the challenges posed by socially-distanced trials, speaking from her own experience at Visa. “More cases are being decided on the papers. Hearings are being conducted on Zoom,” she said. “And strangely enough, trials are being conducted in-person in certain places.”
Rutherford then went on to explain the challenges of in-person court procedure, from bringing a witness to court to the politicization of face masks affecting out-of-town lawyers vis-à-vis jury pools. Both she and Friedman also spoke to the additional challenges of attorney-client privilege, when it is impossible to ascertain exposure of confidential information to outside parties, including family members who may be inadvertently exposed to conversations during a Zoom session.
Daniel Cooper, a jury consultant, further elaborated on the issues faced by the courts during the pandemic. According to Cooper, “all courts, or most, are falling well behind, and facing an enormous backlog.” He elaborated that the physical limitations in place — how much space is available in a courtroom, how witnesses, lawyers and jurors can travel to the venue, etc. prove very difficult challenges for court proceedings, exacerbated by the impact the pandemic is having on the jury pool itself. The nature of jury interactions, crucial during deliberations, will also clearly be impacted, and Cooper suggests that there may indeed be a trend away from jury trials as a result.
These speakers, drawing on their diverse ranges of expertise and professional perspectives, make one thing clear: new strategies are needed to meet the challenges posed by the ongoing COVID-19 crisis head on, and counsel will have to adapt their practices to best serve their clients and remain compliant with both old and new regulations.
Click here to watch the webcast, “COVID-19: Altered Dynamics Demand Close Attention by Counsel in an Evolving Landscape.”