Clients Support Using Virtual Litigation Post-Pandemic, Study Finds

After being forced into conducting litigation online during the global COVID-19 pandemic, many clients are now open to continue litigating in a virtual environment when the pandemic ends, according to a new study.

The study, commissioned by insurance law firm Wilson Elser Moskowitz Edelman & Dicker, found that clients in the insurance litigation space were broadly positive to continuing to conduct virtual depositions, mediations, and workers compensation hearings. The vast majority (87%) of respondents said they had favorable reactions to virtual WC hearings during the pandemic, versus 13% who had negative reactions, while 76% of respondents had favorable reactions to virtual mediations versus 24%.

Meanwhile, respondents were more split on virtual depositions. Barely half of respondents (54%) had a positive opinion toward conducting depositions virtually. Respondents were also adamantly bearish on virtual trials: Almost three-quarters of respondents who had experienced a virtual trial (72%) said that they found them to be more detrimental than beneficial.

And for some litigation management techniques, the virtual medium is increasingly being seen as the way forward. Almost 80% of respondents said they now preferred virtual strategy meetings as a default way of doing business, while just over half said a virtual venue should be the default for settlement conferences. Yet only 49% felt mediations should regularly be virtual, while just 43% supported the virtual environment as the default for non-plaintiff depositions.

Site inspections, plaintiff depositions, and trials are the least-supported activities for virtual settings, according to the study.

Mathew Ross, a partner at Wilson Elser, said while there are aspects of litigation that can be done effectively virtually, many aspects of a trial—including jury selection, and openings and closings—are still more effective in person.

“I would venture to say that would be the majority opinion on either side of the coin—defense and plaintiff’s,” he said, adding he was not surprised clients broadly felt the same way.

However, Ross said smart law firms and clients can make good use of virtual environments for many parts of a litigation, such as depositions and mediations.

Deborah Farone, a legal business consultant, said there is a certain value that clients and lawyers will always derive from face-to-face meetings.

“When the issue at hand is highly-sensitive or involves great risk, there is no substitution for a personal conversation,” she said. “Good lawyering is based on trust between a client and their advisor. It’s challenging to build deep relationships over a Zoom call.”

The main benefits of virtual litigation management activity were cost-related, rather than efficiency. Yet respondents to the survey said many litigation activities that have high cost-saving potential are not suitable for virtual environments. Just because an activity has the potential to save significant costs when conducted virtually, does not necessarily mean it is a good candidate for the virtual environment, write the researchers.

“We view this to be very healthy as the industry evaluates these changes,” the researchers added. “Witness and expert preparation, trials, witness interviews, and site inspections were all identified as having significant cost-saving potential when conducted virtually, but each scored very low when it came to preferred or default approaches.”

While the study concentrated on the insurance litigation market, Ross, a trial lawyer, said litigation clients generally would likely share the same attitudes.

“These findings would very likely be very similar outside the insurance industry. The in-house legal departments of larger corporations are all looking at virtual litigation in a similar fashion,” said Ross. “They want to know what works and what doesn’t, and how to get the best possible services from their counsel.”

The business implication for law firms is clear, claims Wilson Elser.

Firms that can describe they can operate in a virtual environment will be “well-received,” and will benefit from marketing in detail their processes for “virtualizing” different areas of their practice.

Over 80% of clients in the study said their response to a firm’s ability to provide and adequately describe their virtual litigation services would impress them “that [the firm has] adopted efficient ways to conduct certain aspects of litigation management,” according to the researchers.

Matthew Ross of Wilson Elser Moskowitz Edelman & Dicker. Courtesy photo

The key for law firms, Wilson Elser’s Ross said, is to recognize that “one size does not fit all” when it comes to offering clients a virtual litigation service.

“Lawyers need to be strategic in making recommendations to our clients on which case types and activities are best suited for virtual litigation,” said Ross.

Farone said law firms should take a lead from other product and service companies.

“Consumers of legal services—even of the most sophisticated type—are looking for easy to understand, straightforward communication,” Farone said. “Firms should be able to package what they offer and be able to communicate it fully both within their firm and to the outside world.”

Wilson Esler polled 112 insurance industry professionals for the study, including senior claims leaders, and “front-line file professionals” who manage litigated files.